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Cruise Line Passengers to Cuba - Which OFAC category?


#1

Spunky has elsewhere posted various cruise line links to OFAC certification information and pointed out that “support for the Cuban people” is the best choice for those wanting to do their own thing.
On the other hand cruise lines themselves promote “people to people” as the preferred OFAC choice because it gives them an opportunity to market their expensive company tours.
First, let’s get over the practicalities - which are that USCBP has not referred an individual traveller to OFAC for about 20 years, so making the correct OFAC choice is not a big deal in the greater scheme of things, but does give many peace of mind.
Now some technicalities for those who really want to know if they are going to be compliant on their cruise to Cuba:
The bad news for passengers who choose the cruise line preference for people to people is that most may not be compliant unless their only activities, and I stress only activities, are ship-sponsored tours (ie where you are with a group traveling under the auspices of an organization that is a person subject to U.S. jurisdiction).
Immediately a passenger completes a ship-sponsored tour and does their own thing ashore they cease to meet the strict criteria for compliance. This is principally because people to people travel does not allow the passenger’s schedule any free time or recreation. The rationale is simple: under this OFAC category passengers should be able to rely on the sponsoring organisation to maintain their OFAC compliant itineraries, which is impossible if they have no idea of what passengers are otherwise doing when ashore. See: (b) General license for people-to-people travel at: http://tiny.cc/7b3ewy
Choosing “support for the Cuban people” is a much safer compliance option, will probably save you hundreds of dollars in tour costs, plus gives you the freedom to enjoy Cuba as you prefer and in your time.


#2

This post debunks some current cruise line advice

Carnival Cruise Line: Travel to Cuba Q&A
Q: Can guests go as tourists to Cuba?
A: Travel to Cuba for tourist activities is not allowed. Examples of activities that are not permitted in Cuba include purely recreational activities, tourist activities, travel in pursuit of a hobby, or research for personal satisfaction only.
True - OFAC does not allow tourism. However, your Cuban visa is a “tourist” visa and many licenses allow “free time or recreation”, so check yours to see.

Q: How do the people-to-people programs work?
A: People-to-people programs are a permitted category for U.S. guests to visit Cuba. These programs must include a full-time schedule of activities that will create educational interactions between guests and the Cuban people. Activities can include shore excursions offered by Carnival. As of November 9, 2017, guests may not opt to participate in a “self-guided” program, unless that guest booked their cruise sailing to Cuba before June 16, 2017. Such self-guided guests must still have a full-time schedule of authorized activities and must maintain their own records demonstrating such a full-time schedule.
Misleading, because by choosing OFAC’s “support for the Cuban people” guests can be “self guided”.

Q: If my cruise stays in Cuba overnight, do I have to engage in people-to-people activities both days?
A: Yes. For Day 2, any guest who wishes to get off the ship will need to participate in a people-to-people activity/shore excursion. They cannot rely on the prior day’s people-to-people activities for the next day. For those sailings that depart at noon on Day 2, guests wishing to get off the ship will need to participate in 2-3 hours of people-to-people activities.
Mostly true, except that OFAC never specifies hours. Under P2P, all guest activities ashore are required to be accompanied by a "person subject to U.S. jurisdiction and that sponsors such exchanges to promote people-to-people contact."

Q: Does Carnival offer shore excursions that comply with one of the 12 general licenses?
A: Carnival offers shore excursion programs that fully comply with all the requirements for people-to-people programs. In planning activities ashore, guests should keep in mind that people-to-people activities must be fulfilled before guests can engage in free time. Evening shore excursions offered by Carnival do not currently comply with the people-to-people guidelines and cannot be considered to be part of the required full schedule of activities. Popular tours do sell out so guests wanting to ensure they book their preferred shore excursions should book early at carnival.com.
Some true, some false: OFAC does not specify any availability of “free time” under the P2P category.

Q: How much free time is there?
A: After completion of a full-time schedule of people-to-people activities, guests are free to explore as they wish.
False. Under “support for the Cuban people” there is a definitional limit to free time and recreation. Under P2P OFAC does not state that guests are allowed free time ashore.


#3

Thanks for that posting, Rob. I just now read through the regulations again, and I see that under §515.565 (b) General license for people-to-people travel, although there are references to a full-time schedule, there is no reference, as you say, to free time. And yet in many of the other categories of general license, including §515.574 Support for the Cuban People, there is wording that prohibits “free time or recreation in excess of that consistent with a full-time schedule.”
It seems odd that the CACR would not include that same prohibition under people-to-people.


#4

Jack, as you know I break down the regulations as they are written, and each OFAC category stands alone unless it is apparent that it borrows from elsewhere for sense. I welcome the views of others in case I have missed something.


#5

Yes, each one would have to stand alone. I didn’t intend to imply that there was some way to combine categories, if that was what I seemed to be saying.
The people to people category seems to be unique in not even mentioning free time.


#6

I wonder if the difference might be because they see “people to people” as having the US organisation to monitor the situation and ensure that the schedule is “full time”, whereas in other cases, they want to emphasise the position.


#7

beardo
As I read it, the distinctions are clear. For example 515.566 Religious activities in Cuba & §515.567 Public performances, clinics, workshops, athletic and other competitions, and exhibitions make no mention of needing a schedule of any sort because once the primary intent is satisfied, then any other activity is deemed incidental (rather than free time or recreation).
I suspect Cruise Lines would be worried if they discovered their deceitful website advice to passengers regarding choosing people to people (under §515.565 Educational activities) was legally flawed, so let’s just tell those who post that it is a very poor choice.


#8

Rob - noted. But for those that do require a “full time schedule”, do you think that “full time” under “people to people” would mean the same or different to “full time” under “support for the Cuban people” ?


#9

I do wonder if we are over-thinking this. While realizing the present discussion deals with cruises, the rules have to apply equally to travelers arriving by air and by cruise.
So it is pretty much impossible for a passenger arriving by air for a people-to-people tour not to have some free time. Even if they travel one day, and leave the next.
We could, in fact read it not so much as defining what constitutes free time, as a prohibition of free time that is more than that which would be consistent with a full-time schedule. As Beardo suggests, with a guided tour, there would be a US organization that would guarantee that the tour schedule is full time.

Note: edited to be more consistent with Spunky’s comment @9 below.


#10

Jack, I’m thinking that the US tour organizations would not be “ensuring” a full time schedule. They would “guarantee” it in their tour contracts but probably rely on the lack of enforcement more than their diligence.


#11

Spunky - what the organisations are doing and what OFAC think they should be doing might be two different things.

But I suspect that organisations are more likely to try to comply with the rules. Whilst we have heard of no individual being audited by OFAC, nor fined for not complying with the rules of the license under which they travelled, organisations have been fined.


#12

That may be so, Spunky. Therefore, I have edited my post to be more consistent with that.


#13

The tour organizers were fined years ago and their “Guarantee” protected their clients.


#14

beardo
Technically each OFAC category stands alone.
It is not a mistake that OFAC omits free time or recreation for some categories or the requirement for a schedule in others - lawyers are not actually that stupid. So I cannot see P2P allowing any free time and explained why earlier.
Also, I am only writing on what is clearly written in OFAC here, and not drawing any inferences from the realities of non-enforcement. It is improbable that these OFAC matters would ever make it to a US court. However, from a strictly legal perspective, what some cruise lines have written at their websites regarding P2P are baseless.

cubajack
I specifically addressed this thread to counter cruise line duplicity, but you are correct in that there is no difference as to how one travelled to Cuba. I also am looking for contrary perspectives which might hold up in OFAC - so welcome them.
Having been on many organised tours it is customary to be collected from arrivals by the tour operator, brought to where the tour group is accommodated, and be with that group until they send you back to the airport. And yes, most of these tours will integrate some free time availability. However, as P2P is written specifically for the unique rules applying to travel directly from the USA , there is no scope for the tour organiser to propose free time because you need to be with the group, the group needs to be accompanied as per OFAC §515.565 (b) (4), and the full time schedule stipulates educational exchange activities.
A final note on free time or recreation: Were it ever to be contended, it is nuanced to OFAC and contextual to the theme that tourism is not allowed. What one does privately in their room while on tour has no qualifying impact on compliant activities.


#15

You have done that very well, Rob. I think the cruise lines have way too many American (and other) travelers completely confused by the way they seem to be trying to make their customers believe that P2P is the only way to enter Cuba. Is it any wonder that many people try to overthink it?


#16

Spunky - although years ago, I suspect fines of $5 million and up will remain in the memory.

Rob - so your view is that the “people to people” tours should allow no free time - that in their case “full time” means all the time that they are in Cuba ? So “full-time” there means something different to “full-time” in “support for the Cuban people” ?

That is not how the organisers have interpreted things - even when they were subject to specific licensing.

To me, OFAC’s FAQ 24 implies they see “full time schedule” as being the same thing for each category - https://www.treasury.gov/resource-center/sanctions/Programs/Documents/cuba_faqs_new.pdf

Your interpretation means that all those cruise line trips to the Tropicana are illegal ?

As this has never been tested in courts, I guess we don’t know for sure.


#17

This post debunks some current cruise line advice from MSC
In terms of unconscionable conduct and disrespect for passengers, MSC is at the top of my list. My responses to MSC’s statements are in bold. When opening to the MSC Cuba website we a are greeted by this message:

“Enjoy an even richer itinerary across the Caribbean and dive into the local culture of Cuba through the people-to-people educational program. In order to disembark in Cuba, you will need to purchase a shore excursion through MSC Cruises as part of the People-to-People program.”
False, see their own advice below.

Now looking at MSC’s FAQs:

Q. What are the other categories that provide eligibility of travel to Cuba?
A. Listed below are the 12 general authorized license categories as defined by the U.S. Department of Treasury, Office of Foreign Assets Control (OFAC). Guests who are not participating in MSC Cruises people-to-people educational exchange program plan must participate in at least one of the following activities falling within the general authorized license categories provided by OFAC.
True, and one of those categories which it lists is "Support for the Cuban people"

Q. Will guests residing outside of the U.S. and sailing with MSC Cruises from Miami to Cuba have to participate in people-to-people cultural and educational activities?
A. All guests sailing from Miami on MSC Armonia will either be required to participate in the people-to-people experiences, qualify for one of the other 12 categories of authorized travel to Cuba, or hold a specific license issued by OFAC.
True, and it can be “Support for the Cuban people” as noted above.

Q. Can I explore Cuba on my own?
A. You cannot get off the ship in Cuba unless you are on a shore excursion.
False, for the reason above.

Q. Do guests need to purchase a “people-to-people” shore excursion for each day that they are in Havana?
A. Yes, guests traveling to Cuba under the people-to-people program must purchase a “people-to-people” shore excursion for each day they are disembarking in Havana or certify that their travel falls under one of the 12 general authorized license categories as defined by OFAC
Again, FALSE.

Q. Can I stay on the ship during the day and only take a nighttime shore excursion?
A. Yes, but you cannot get off the ship until the time of your shore excursion.
Again, FALSE.