Sunday, January 30, 2011

Legal Analysis by Robert Muse

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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 Laudably, the substantial incursions into that freedom by the Bush administration were rescinded by the OFAC rules published today.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).

1 comment:

  1. Robert, thank you for your analysis. Can you detail a bit further what your interpretation of "for credit" means? In many cases, we work with college professors who are taking their students into the field but the course is optional and while it is offered to all students, they don't all participate. Let's do a for example, let's say that a prof of American History is teaching a course on "American History: 20th Century" and in May after the semester is over, they want to offer a program to Cuba for their students. Would this count?