Sunday, January 30, 2011

New Regulations from OFAC

Full text available on OFAC web site, click here

OFAC Summary 

The Department of the Treasury's Office of Foreign Assets Control ("OFAC") today is amending the Cuban Assets Control Regulations, 31 C.F.R. part 515 (the "CACR"), to implement policy changes announced by the President on January 14, 2011, to allow, among other things, for greater licensing of travel to Cuba for educational, cultural, religious, and journalistic activities and to expand licensing of remittances to Cuba.  Among other changes, OFAC has issued new general licenses authorizing travel-related transactions incident to certain educational or religious activities to replace the former statements of specific licensing policy for such transactions.  OFAC has restored to the CACR a statement of specific licensing policy for "people-to-people" exchanges.  This travel category provides for licenses authorizing educational exchanges not involving academic study pursuant to a degree program when those exchanges take place under the auspices of an organization that sponsors and organizes such programs to promote people-to-people contact.  OFAC has increased the scope of the statement of specific licensing policy for journalistic activities in Cuba to include free-lance journalistic projects other than "articles."  OFAC also has issued new general licenses authorizing remittances of up to $500 per quarter to any Cuban national, as well as unlimited remittances to religious organizations in Cuba in support of religious activities there.  These amendments also authorize certain transactions with Cuban national individuals who have taken up permanent residence outside of Cuba, as well as implement certain technical and conforming changes.

Legal Analysis by Robert Muse

Law Offices of
Robert L. Muse
1320 19th Street, N.W., Suite M-2
Washington D.C. 20036

Robert L. Muse (DC)                                  Telephone: 202-887-4990 
                                                                                      Direct Dial: 202-887-4955                                                                                                                                                                             

January 28, 2011

New Rules Regulating Academic and People-To-People Travel to Cuba


The Treasury Department's Office of Foreign Assets Control (OFAC) published today new regulations that implement the changes in U.S. - Cuba policy announced by the White House on January 14th. Although the newly published regulations also deal with such things as remittances to Cuban nationals, this analysis is limited to an examination of the new rules as they relate to travel to Cuba by U.S. citizens for academic and non-degree educational/cultural travel. With the latter commonly is referred to as “people-to-people” travel.

Academic Travel

The new rules pertaining to the Cuba programs of accredited U.S. institutions of higher education are a welcome affirmation of the principle of academic freedom. Laudably, the substantial incursions into that freedom by the Bush administration were rescinded by the OFAC rules published today.

Specifically, American colleges and universities are no longer restricted to programs of ten weeks or more in duration. Therefore they may once again offer intersessional courses in Cuba to U.S. college students. (Intersessional courses are courses of typically two or three weeks duration scheduled between semesters). Also U.S. colleges and universities may now have their courses in Cuba taught by part-time adjunct faculty and professors from other colleges and universities. In addition, students enrolled in academic institutions other than ones offering courses in Cuba may now enroll in the courses offered by any U.S. college or university

In summary, the essential requirements under the new rules governing travel for academic purposes are (i) that the course to be attended in Cuba is one that is offered "for credit,” and (ii) that the person attending the course is enrolled in a degree program at an accredited U.S. academic institution that will credit that course work toward the student’s degree.

Interestingly, the new rules do not require academic institutions to apply to OFAC for licenses to conduct programs in Cuba. Instead such programs are now generally licensed.[1] The only requirement is that someone traveling to Cuba to teach or attend a course organized by a U.S. college or university must carry a letter from that academic institution:

“…on official letterhead, signed by a designated representative of the sponsoring U.S. academic institution, stating that the Cuba-related travel is part of a structured educational program of the sponsoring U.S. academic institution, and stating that the individual is a member of the faculty or staff of that institution or is a student currently enrolled in a graduate or undergraduate degree program at an accredited U.S. academic institution and that the study in Cuba will be accepted for credit toward that degree.”

People-to-People Travel

People-to-people travel has been restored by the Obama administration with a simple, verbatim reprise of the Clinton era rule that created such travel in 1999. (The category was abolished by the Bush administration in 2003). The new rule authorizes:

“Educational exchanges not involving academic study
pursuant to a degree program when those exchanges take place under the auspices of an organization that sponsors and organizes such programs to promote people-to-people contact.”

There was speculation after the White House announcement on January 14 that the publication of the final rule in the Federal Register would clarify exactly what the terms used in the people-to-people regulation actually mean. For example, what is an “educational exchange?” No one expects a Cuban national to come to the U.S. to participate in an educational program here in precise reciprocal exchange for each American who goes to Cuba for such a purpose. So what is the “exchange” component of the people-to-people travel category? It is probably no more than mere surplusage, as evidenced by the fact that during the Clinton administration there was no “exchange” component required of people-to-people travel.

            Furthermore, what qualifies as an “organization that sponsors and organizes such programs [i.e. educational exchange] to promote people-to-people contact?” Clearly the demonstration of a genuine educational mission will be required of successful applicants, but will a comparable demonstration be required of applicants’ fitness to “promote people-to-people contact?”

And what, for that matter, does the curious expression “people-to-people” actually mean? My experience of Cubans is that most are quite hospitable, but surely they will be at least mildly apprehensive if they believe roaming groups of American visitors are soon to descend upon them forcing “people-to-people” engagement as they try to go about their business in the streets of Cuba.

Because no definitions accompanied the promulgation of the new people-to-people rule, it is only over time that we will learn the scope and significance of that restored category of travel, with both measurable in terms of actual numbers of Americans on the ground in Cuba. That is, we must wait and see what U.S.-based organizations actually get licensed and precisely for what before the effect of the new rule can be assessed.

History demonstrates how elastic the people-to-people category can be, and also how narrowly it can be construed. When instituted in 1999 people-to-people licenses were handed out freely by OFAC. In 2001 George Bush took office and slowly tightened up on the number of licenses that were issued. The form the tightening took was a new emphasis on the phrase “people-to-people.” I revisited my old files recently and found an OFAC application I had filed on behalf of a client in July, 2002. The following passage appears in the application: “… U.S. policy and regulations support structured educational programs that require direct and demanding engagement between program participants and the people of Cuba.”

I had put that language in the application at the behest of OFAC’s director of licensing at the time. He said I must recite those words and demonstrate that such “direct and demanding engagement” with the Cuban people was to be found in my client’s proposed people-to-people travel itineraries in Cuba. I was hardly surprised when the application was denied, by then they were all being denied because a people-to-people standard had been created by the Bush administration that was simply impossible to meet.

What Next?

Democratic Senator Robert Menendez (D-NJ) supplied an important clue in his press release issued within minutes of the White House announcement. He said:

 “Unless new efforts are undertaken to limit the impact of these policy changes, the sole result will be to enrich the Castro regime and enhance the political and economic impoverishment of the Cuban people.” (Emphasis added).

The phrase “limit the impact of those changes” can mean only one thing – keeping the number of U.S. people-to-people travelers to Cuba to minimum. And that is where I believe pro-embargo elements will concentrate their activity. In particular they will press the Obama Administration to require unrealistic people-to-people components to successful license applications.

They will also demand, I suspect, that OFAC view each application for a people-to-people license through the prism of the White House announcement’s claimed purpose behind the new policy: i.e. “to reach out to the Cuban people in support of their desire to freely determine their country’s future.” Pro-embargo hardliners know that if they can successfully harness people-to-people travel to a regime change project in Cuba, the government of that country will react with hostility to such travel – and that will be that, it will simply never get off the ground. After all, even the President of the United States cannot grant visas to Americans wishing to go to Cuba. Only the government of Cuba possesses that prerogative.

[1] For a description of the Cuban Asset Control Regulations’ general license category, see Capital Cities/ABC, Inc. v. Brady, 740 F. Supp. 1007 at 1008 (S.D.N.Y.1990): “Parties to a transaction falling within a general licensing provision may proceed without prior OFAC approval.”  (Emphasis added)  See also the OFAC publication titled A Synopsis for the Travel Industry, which says: “General licenses exist to enable particular categories of U.S. persons to spend money in Cuba without contacting OFAC.”  (Emphasis added).

Friday, January 21, 2011

Johana Tablada of MinRex analyzes the White House statement

Cuban official tells why Obama's easing of travel and cash restrictions is 'insufficient'

Excerpts from interview with Johana Tablada, deputy director of the North American Department of the Cuban Foreign Ministry, published Friday in Cubadebate and translated by Cuban Colada. (fot)The subject was a Jan. 16 statement by the Foreign Ministry downplaying Washington's Jan. 14 announcement of eased restrictions in travel and remittances.

Q.: Why does Cuba consider that these new measures do not constitute a substantial change in the relations between the island and the United States?

A.: We have to wait until the regulations are published with the interpretations of these measures, which for now are just a political announcement. Still, we believe they are limited.

It is true that they don't constitute a new turn of the screw in terms of the blockade, and that's why we said they are positive, but they concentrate on restoring certain categories of passengers who can travel to Cuba for specific purposes regarding educational, cultural, or religious issues.
From that standpoint, they are limited. Cuba continues to be the only country in the world to which Americans cannot travel freely, and American citizens continue to be the only people in the world who cannot travel freely to Cuba.

They are insufficient, too, because they do not address the fundamental aspects of the regime of sanctions against Cuba. The blockade remains the most sophisticated and all-encompassing system of sanctions imposed by any other country on any other country.

With regard to the blockade, there is no change. No changes are made in the regulations against Cuban assets, or in the financial hounding, or in the laws that bar vessels from other countries from coming to Cuba.

No changes are made either in the principal instruments of aggression against Cuba, such as the smear campaigns, the subversion or the funding for the dissents within the island.

There have always been certain groups interested in hindering any positive step in the bilateral relations with Cuba. These powerful sectors have found formulas to scare or intimidate the decision-makers. Often they distort reality, while, on the other hand, there is strong support for a change in U.S. policy.
These measures respond to a growing debate in different sectors: economic, academic, student, religious, agricultural. These debates call for a real change in policy toward Cuba.
Among the sectors that are asking for change, many opine that this is a positive step for Obama, but in reality it could go farther. President Obama has the prerogatives to go farther and American society is ready to lift the blockade and to lift the ban that prevents Americans from traveling to Cuba.

Q.: So, there is nothing new in these announcements?

A.: These measures were in force in the 1990s and the most wide-ranging were announced in 1999. Then, in 2003, Bush suspended them. That's why we say they are not new measures.
In any case, we consider them as a small step, thanks to the efforts of the groups and broad sectors that have called for a change in the policy. But we must not forget that this is part of the United States' attempt to find ways to achieve the same purposes of previous administrations by different means.

Comment to blog by John McAuliff

The only defenses a small country has to maintain its independence and sovereignty against a hegemonic big neighbor are its caution and its determination. That is as true for the neighbors of Russia and China as for the US.

Ms. Tablada is correct that the proof will be in the pudding. Had the announcement given all categories of purposeful travel a general license, we would know where we stand.
Now we wait to see whether OFAC serves as a facilitator to register and track people to people travel or as a cop to judge, intervene and delay.

The President set a very positive direction, but the language of the announcement was couched for ears in Miami not in Havana.

To have an impact on implementation, please consider signing this letter

John McAuliff
Fund for Reconciliation and Development

Read more:

Monday, January 17, 2011

Analysis of the Presidential Statement 2 (Vic Johnson, NAFSA)

Lifting these rules has been a major goal of educators who promote study abroad. Victor C. Johnson, senior adviser for public policy at NAFSA: Association of International Educators, called the move "a very big deal" in that "our colleges once again will be able to exercise whatever free choice they want to make about whether students can study in Cuba or not."

An October letter from college and university presidents, organized by NAFSA, cited statistics showing that only about 250 students from the United States are currently able to study in Cuba each year. That compares to about 2,100 before the Bush administration imposed the rules that are now being lifted. Reverting to a system similar to the rules in place during the Clinton administration will mean the following changes:

American colleges wanting to set up credit programs in Cuba will have to follow certain "general" rules but will not need a special license from the U.S. Treasury Department to do so. Obtaining those licenses has been difficult, and Johnson noted that many colleges have complained that they may be approved one year and denied the next, or that they can't get any decision on their applications -- and that as a result many colleges stopped trying to set up programs.

American colleges will be allowed to involve adjunct faculty members in their programs, which they have been barred from doing. This restriction has prevented colleges from working with scholars with unique academic expertise about Cuba who may not be on their permanent faculties.
American colleges with Cuba programs will again be able to enroll students from other colleges in those programs -- which is crucial since most colleges will still not likely set up programs in Cuba, but may have students who want to study there.

Institutions wanting to set up non-credit programs will be able to do so. While they will have to seek a special license from the Treasury Department, the rules will presume approval for legitimate efforts.

Johnson said he wasn't sure how quickly American academic programs would grow in Cuba. Many institutions were frustrated that programs they built up were forced to close, and the option to go back is coming "in a different budgetary climate" than existed previously, Johnson noted. But he said that "there is clearly interest" and that he expected many colleges to move ahead.

Analysis of the Presidential Statement 1 (John McAuliff)

Preliminary Assessment of the Content of the White House Announcement

Most dramatic step forward:  higher education and religious organizations will have general licenses, i.e. no application to or clearance by OFAC is required. 

Short term survey programs can be undertaken by colleges and universities for their own and other students as long as academic credit toward a degree is given.  (This is more freedom than schools had before 2004. However, third party non-profit and commercial providers that organize most student exchange programs will not be covered by this section.)

National and local “religious organizations” can sponsor trips for “religious purposes” as often and for as long as they desire.  (However, groups using this license will probably be required by Cuba to have a religious visa which generally needs 90 days for clearance.)

Zone of uncertainty:  all other educational exchanges will require a specific license. 

The potential for greatest expansion and the strongest impact in both countries is embodied by the President’s goal “to enhance contact with the Cuban people and support civil society through purposeful travel, including religious, cultural, and educational travel.” 

Theoretically this ought to include trips by 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, musicians, singers, dancers, etc.  However OFAC may seek to narrow permitted categories and set challenging criteria for licensing.

If “an organization that sponsors and organizes people-to-people programs” means the group must already have organized such travel, eligibility will be drastically curtailed.  Groups new to exchanges will be required to work through intermediaries which can substantially inflate costs and complicate arrangements.

Depending on the direction and oversight of the State Department, OFAC can treat applications as a formality for purposes of registration and tracking as seemed to be the case in the late Clinton Administration, or it must expand its staff and divert its attention from more serious responsibilities as happened during the early Bush years. 

(OFAC could once more become a bottleneck requiring of applicants intrusive and time consuming detail of itineraries, agendas and evidence of organizational qualifications.  Licensing decisions should become transparent and be shown on line to avoid past appearances of arbitrariness and subjectivity.  Less sophisticated grass roots groups will require assistance so they are not intimidated by the procedure and anticipated costs.)

An important opening is that “specifically licensed academic institutions” can sponsor “academic seminars, conferences, and workshops related to Cuba” for “faculty, staff and students”.  Interpreted broadly this could include stand alone research entities and think-tanks, but does not seem to allow them to invite outside experts for track 2 or track 3 meetings unless they are affiliated with a cosponsoring institution.

Any organization appears entitled to get a specific license for “non-academic clinics and workshops”.  However, the intention is not clear of specifying they be “for the Cuban people”.  Presumably a US legal, medical, environmental, agricultural or business group can organize a training program for its professional counterparts.  (Could a US not-for-profit group hold a workshop to benefit both Cubans and Americans?  Can ASTA, for example, bring together US tour operators who specialize in cultural and educational exchange with Cuban counterparts, both state owned companies and proprietors of private bed and breakfasts and restaurants?)

“Specific licensing for a greater scope of journalistic activities” could mean that bloggers and internet newsletters, student reporters and others who are not full time journalists for conventional publications can be licensed if OFAC favorably evaluates their professed qualifications (or their perspective).


Remittances are restored as a general license category for all Americans not just those with family links to Cuba.  The amount specified of $500 per quarter is unrealistically low “to support private economic activity, among other purposes”.  The designation of recipients as “non-family members” suggests that Cuban civil society, social service agencies and medical institutions may not be sent donations.  (In practice under a general license such a limit is very hard to monitor or enforce, especially for donations from individuals who can pass funds through friends and family members.)

Religious institutions have a preferred status but it is not clear whether the general license for apparently unlimited remittances “in support of religious activities” includes the humanitarian and social service work of Cuban religious groups such as the Martin Luther King Center of the Ebenezer Baptist Church in Havana and the Christian Center for Reflection and Dialog of the Presbyterian Church in Cardenas.

Who Apparently Is Left Out

1)      Americans who wish to participate in Cuban organized academic, professional and specialized interest conferences.

2)      US organized conferences in Cuba in which Americans are the primary participants, with Cuban counterparts invited as registrants, observers or guests.

3)      US non-governmental organizations (NGOs) and foundations that want to explore, implement, send and monitor assistance for humanitarian, environmental and development purposes.

Updates from US Cuba People to People Partnership
Inquiries may be sent to
On line petition of support for the President’s executive order                                         1/17/11  

Official Cuban Response

Text of Cuban Foreign Ministry statement
Statement from the Cuban Foreign Ministry on Jan. 16, published in Granma and translated by Cuban Colada.

On Jan. 14, 2011, the Government of the United States announced new measures regarding Cuba. Although we shall have to wait for the publication of the regulations to learn their true meaning, according to preliminary information released by the White House Press Office, the measures consist of:

• Authorizing the travel by Americans to Cuba for academic, educational, cultural and religious purposes.

• Allowing American citizens to send remittances to Cuban citizens in limited quantities.

• Authorizing U.S. international airports to request permission to operate direct charter flights to Cuba under certain conditions.

The adoption of these measures is the result of efforts by broad sectors of American society that for years have sought mainly to lift the genocidal blockade against Cuba and the elimination of the absurd ban on travel to our country.

It is also an expression of the recognition of the failure of U.S. policy against Cuba and the fact that it seeks new ways to achieve its historic goals of domination of our people.

Although the measures are positive, they remain well below those just demands, have a very limited scope and do not modify the policy against Cuba.

The White House announcement is limited, essentially, to restoring some of the provisions that were in force in the 1990s under the Clinton administration, and were eliminated by George W. Bush beginning in 2003.

Those measures benefit only certain categories of Americans and do not restore the right to travel to Cuba of all American citizens, who will continue to be the only ones in the world who cannot visit our country freely.

These measures confirm that there is no willingness to change the policy of blockade and destabilization against Cuba. When announcing them, officials of the United States Government made it quite clear that the blockade will remain intact and that they intend to use the new measures to strengthen the instruments of subversion and interference in the internal affairs of Cuba. This confirms the charges contained in the Foreign Ministry statement dated Jan. 13 past.

Cuba has always favored exchanges with American people, universities, academic, scientific and religious institutions. All the obstacles that hinder visits by Americans to Cuba always have been, and continue to be, on the side of the Government of the United States.

If there were a real interest in expanding and facilitating the contacts between our peoples, the United States should lift the blockade and eliminate the prohibition that makes Cuba the only country to which Americans cannot travel.

Read more:

Statement of the President on Travel


Office of the Press Secretary
For Immediate Release January 14, 2011


Today, President Obama has directed the Secretaries of State, Treasury, and Homeland Security to take a series of steps to continue efforts to reach out to the Cuban people in support of their desire to freely determine their country’s future.

The President has directed that changes be made to regulations and policies governing: (1) purposeful travel; (2) non-family remittances; and (3) U.S. airports supporting licensed charter flights to and from Cuba. These measures will increase people-to-people contact; support civil society in Cuba; enhance the free flow of information to, from, and among the Cuban people; and help promote their independence from Cuban authorities.

The President believes these actions, combined with the continuation of the embargo, are important steps in reaching the widely shared goal of a Cuba that respects the basic rights of all its citizens. These steps build upon the President’s April 2009 actions to help reunite divided Cuban families; to facilitate greater telecommunications with the Cuban people; and to increase humanitarian flows to Cuba.

The directed changes described below will be enacted through modifications to existing Cuban Assets Control and Customs and Border Protection regulations and policies and will take effect upon publication of modified regulations in the Federal Register within 2 weeks.

Purposeful Travel. To enhance contact with the Cuban people and support civil society through purposeful travel, including religious, cultural, and educational travel, the President has directed that regulations and policies governing purposeful travel be modified to:

· Allow religious organizations to sponsor religious travel to Cuba under a general license.

· Facilitate educational exchanges by: allowing accredited institutions of higher education to sponsor travel to Cuba for course work for academic credit under a general license; allowing students to participate through academic institutions other than their own; and facilitating instructor support to include support from adjunct and part-time staff.

· Restore specific licensing of educational exchanges not involving academic study pursuant to a degree program under the auspices of an organization that sponsors and organizes people-to-people programs.

· Modify requirements for licensing academic exchanges to require that the proposed course of study be accepted for academic credit toward their undergraduate or graduate degree (rather than regulating the length of the academic exchange in Cuba).

· Allow specifically licensed academic institutions to sponsor or cosponsor academic seminars, conferences, and workshops related to Cuba and allow faculty, staff, and students to attend.

· Allow specific licensing to organize or conduct non-academic clinics and workshops in Cuba for the Cuban people.

· Allow specific licensing for a greater scope of journalistic activities.

Remittances. To help expand the economic independence of the Cuban people and to support a more vibrant Cuban civil society, the President has directed the regulations governing non-family remittances be modified to:

· Restore a general license category for any U.S. person to send remittances (up to $500 per quarter) to non-family members in Cuba to support private economic activity, among other purposes, subject to the limitation that they cannot be provided to senior Cuban government officials or senior members of the Cuban Communist Party.

· Create a general license for remittances to religious institutions in Cuba in support of religious activities.

No change will be made to the general license for family remittances.

U.S. Airports. To better serve those who seek to visit family in Cuba and engage in other licensed purposeful travel, the President has directed that regulations governing the eligibility of U.S. airports to serve as points of embarkation and return for licensed flights to Cuba be modified to:

· Allow all U.S. international airports to apply to provide services to licensed charters, provided such airports have adequate customs and immigration capabilities and a licensed travel service provider has expressed an interest in providing service to and from Cuba from that airport.

The modifications will not change the designation of airports in Cuba that are eligible to send or receive licensed charter flights to and from the United States.