Preliminary Analysis of OFAC Travel Guidelines Issued April 19, 2011

http://www.treasury.gov/resource-center/sanctions/Programs/Documents/cuba_tr_app.pdf

The guidelines for general licenses implement a real step forward, confirming the ease of undertaking student and religious travel (for which most Americans are eligible). 

Higher education and religious organizations are given a clear path for purposeful travel, subject only to internal procedural requirements.

“General licenses constitute blanket authorization for those transactions set forth in the relevant regulation.  No further permission from OFAC is required to engage in transactions covered by a general license.”  (p 5)

The guidelines semi-suggested that the meaning of "religious activities" was subject to foreign policy, but finally provided a bigger more Constitutionally legitimate tent

“Activities that are consistent with U.S. foreign policy include, but are not limited to, attendance at religious services as well as activities that contribute to the development of a Cuban counterparts religious or institutional development...”     (p 4)

In a backhanded way, the guidelines indicate that religiously oriented educational travel qualifies for a self-authorized general license if put together and led by a religious organization:

“Not Licensed

Example 2: An organization that specializes in organizing heritage tours for persons of a particular denomination wishes to take interested practitioners of that faith on a trip to Cuba to visit historical sites and museums as well as existing communities of that denomination in Cuba.  The proposed travel does not fall within the scope of the general license inasmuch as the organization putting together and leading the tour is not a religious organization.

Example 3: A group that seeks to promote interfaith understanding wishes to take an inter-denominational group to Cuba to participate in religious activities ranging from Catholic mass to Santeria. The proposed travel does not fall within the scope of the general license inasmuch as the group organizing and leading the tour is not a religious organization.”  (p 27)

Unfortunately, the many more pages devoted to specific licenses reflect a control rather than a facilitation attitude inconsistent with the goal of purposeful travel.  The President's January 14th announcement created the problem by unnecessarily requiring specific licenses for many categories of travel and leaving in charge an agency whose primary mission is to police the financial side of national security. 

The guidelines are unabashed that the potential for politicized and arbitrary negative judgments is inherent the process

"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)

The real question about what the guidelines actually mean remains unanswered until OFAC starts acting on the back-log of applications from groups that were licensed for people to people travel under the Clinton Administration.  The brief section in the guidelines appears reasonable with a potentially large positive impact.  However do OFAC and the State Department have the number of staff, real knowledge about Cuba and enough familiarity with US not-for-profits to make fair, reasonable and timely evaluations of a wide range of prospective programs?

“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)  

The guidelines recommend that organizations

"submit an application to OFAC no later than 45 days prior to the proposed date of departure". (p 7)

Effective trips cannot be planned and promoted without at least two or three months of lead time.  OFAC will frustrate travel this summer if it waits another month to authorize pending and new applications.

OFAC practice requires close independent monitoring.  On what grounds, for example, did it deny a license for Irish American traditional musicians to participate in the Celtic Festival in Cuba when the guidelines give this example of what is OK for performances?

“Potentially licensable under current policy

Example 1: A musical artist wishes to travel to Cuba to participate in a series of public performances with Cuban artists whose venues will be open to the Cuban public and whose profits after costs will be donated to an independent non-governmental organization in Cuba.”  (pp 31-32)

The contradictions that arise from a narrow politicized interpretation of purposeful travel are most flagrant in Humanitarian Projects.  Charity is OK; collegiality is not.

“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)

Groups that deliver token humanitarian donations embody a double edge of patronizing and generosity, but making them “not licensable” is actually a step backward from current practice.  

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.”  (p 37)

The perverseness of using people-to-people engagement as an anti-government tool to foster system change is illustrated by another proffered instance of illicit humanitarianism:

“Example 3: A volunteer organization seeks a license to assist with a school construction project in Cuba.  Since most schools in Cuba are government run, this project normally would not be licensed.  (p 37)

The head of an important international aid program, wrote

“Guess what?. The guidelines under Section IX (pp 35-37) tighten up who we can take to Cuba and what their relationship with our organization must be---e.g. one time travelers for a humanitarian aid mission to a pediatric hospital are not necessarily OK under this category.  If I recruit a volunteer with credentials but he/she is not staff or a board member and is only there for the trip, they may not be licensable. There is also the little matter of the US government wanting way more info on whom we meet with from the Cuban government and why everyone is turned into an intelligence agent”

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 fundamental trust building goal of exchanges is frustrated by the ideology of system change.

OFAC did keep in effect the punitive rule (seldom enforced by US Customs) against bringing back anything except informational materials from Cuba:

"authorized travelers are prohibited from importing into the United States any merchandise purchased or otherwise acquired in Cuba, including but not limited to cigars and alcohol" (p 8)

Ironically informational materials are likely to be given or sold by state sources while handicraft souvenirs are usually produced by private artisans.

Still in place is Bush language which bars use of a general license for international conferences organized by Cubans and by groups based in the US.  However, OFAC indirectly offers a possible path for authorized American organized events:

"A professional organization headquartered in the United States cannot organize or hold a meeting or conference in Cuba without a specific license issued by OFAC."  (p 16)

Presumably the kind of meeting or conference contemplated is a workshop

“open for attendance, and in relevant situations, participation by the Cuban public” (p 30)

It is stated clearly that authorized travelers can use third country agents and tour operators to book travel, accommodations and programs, thus doubly disadvantaging US companies that are not among the 240 licensed Travel Service Providers (3/4th of which are located in Florida).

"Authorized travelers wishing to make their own travel arrangements without the use of a TSP must handle those arrangements directly with travel service providers that are located outside the United States and that are not subject to U.S. jurisdiction."  (p 8)

One of the more bizarre provisions is the need to protect people to people groups from spending too much time with the power structure, unless “individuals or entities acting for or on behalf of” is meant to preclude engagement with most of Cuba’s organized civil society, by certifying:

 “the predominant portion of the activities to be engaged in by individuals traveling under your program(s) will not be with individuals or entities acting for or on behalf of a prohibited official of the Government of Cuba, as defined in 31 C.F.R. 515.337, or a prohibited member of the Cuban Communist Party, as defined in 31 C.F.R. 515.338.” (p 23)

In truth the people and institutions specified are the most influential sectors of daily Cuban life, and among those with whom the Americans need to develop mutual understanding and relationships: 

The term prohibited official of the Government of Cuba is defined in 31 CFR 515.337 to mean Ministers and Vice-ministers, members of the Council of State and the Council of Ministers; members and employees of the National Assembly of Peoples Power; members of any provincial assembly; local sector chiefs of the Committees for the Defense of the Revolution; Director Generals and sub-Director Generals and higher of all Cuban ministries and state agencies; employees of the Ministry of the Interior (MININT); employees of the Ministry of Defense (MINFAR); secretaries and first secretaries of the Confederation of Labor of Cuba (CTC) and its component unions; chief editors, editors, and deputy editors of Cuban state-run media organizations and programs, including newspapers, television, and radio; and members and employees of the Supreme Court (Tribuno Supremo Nacional). The term prohibited member of the Cuban Communist Party is defined in 31 CFR 515.338 to mean members of the Politburo, the Central Committee, Department Heads of the Central Committee, employees of the Central Committee, and secretaries and first secretaries of the provincial Party central committees.

Bottom line, the guidelines are a step forward to implement the new regulations, but an oddly over-cautious and out of sync response to a neighbor that has launched itself on a path of major social and economic reform.

For analysis of new regulations published in January, see
overview http://cubapeopletopeople.blogspot.com/2011_03_01_archive.html
Michael Krinsky http://cubapeopletopeople.blogspot.com/2011/02/detailed-legal-analysis-of-new.html
Robert Muse  http://cubapeopletopeople.blogspot.com/2011/01/legal-analysis-by-robert-muse.html

--John McAuliff, Fund for Reconciliation and Development, 4/22/11     director@ffrd.org