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US Jurisdiction and OFAC - how to make sense of OFAC rules


#6

If one attempts to understand the article beardo referenced or try to understand rederob’s attempted analysis of the regulations while also realizing there are also zero examples of enforcement / non-enforcement, they will eventually realize more effort expended results only in more confusion with no conclusion.

After having tried unsuccessfully to reach some viable conclusions periodically over the last ten years, I give up and go to Cuba to clear my mind of all this.


#7

Bob
What you personally choose to do is entirely up to you.
In the bigger world there are heavily invested organisations who need to ensure they cannot be prosecuted now or in the future because they have taken the necessary steps to determined they are OFAC compliant.
You seem to want to continue your mantra that because OFAC is not visibly enforcing its Cuba travel regulations, that it somehow absolves organisations from worrying. Nothing could be further from the truth.
Most travellers like to know that when they are subject to the rules of others countries, they act in accordance with them.
I certainly do not share your lack of concern for doing the right thing, merely because you think you can always get away with it, and regard it as very poor travel advice.


#8

justRobme: Sorry for any confusion by referring to you as “rederob”. I was thinking of the name you go by on another forum.

It seems our major difference in opinion is that you believe you can be in Australia believing you can advise people by your belief that you can accurately interpret the OFAC regulations which have no case law as a result of never being enforced. Meanwhile attorneys licensed to practice law in the US that I speak with contend no realistic interpretation is possible until there is some attempt to enforce the law and some case law exists.

Everyone traveling from the US to Cuba should do some basic research and reach their own conclusions about risk.


#9

Bob
It does not matter where I live. As a traveller, I am bound by the laws prevailing my journey.
I certainly know how to interpret regulations, because I spent a fair bit of my time writing them in support of government legislation as a senior bureaucrat.
Your points about case law are completely irrelevant.
You seem to have an idea that what OFAC intend is not clear, and that the regulations are prone to significant interpretation.
I have yet to find that is the case and have subjected many scenarios to mooting. Instead, I find OFAC has painted itself into a legal corner which make it easy for travellers to be compliant if they understand what the law is actually saying and, more importantly, what is omitted (extending “reach” can be a slippery slope with unintended consequences).
What I find curious is that you say “Everyone traveling from the US to Cuba should do some basic research and reach their own conclusions about risk”. Yet the principal risks relate to ignoring what OFAC stipulate, and this is where you, personally, promote the view that it can be simply ignored. Your basis is that there is no enforcement, and I agree that this practicality exists for independant travellers. Unfortunately corporations cannot take such risks, and are actually bound by a greater range of statutes than OFAC, so they perform “due diligence”.
The nature of that diligence was conveyed in beardo’s link.
If you disagree with the linked information, please state why.


#10

Rob: We have been down this road before. You believe you can interpret what OFAC requires in specific detail. I believe such cannot be done. We should just agree to disagree and let it go at that.

Bob


#11

Bob
On the contrary.
I cannot see there to be any problems with OFAC, but you do.
Exactly what is being “interpreted”?
Yet you have yet to show where there are issues with the examples offered.
Perhaps try to make your comments relevant to what OFAC presents and leave other matters out of this.


#12

So no one is mislead by justRobme’s comment: I cannot see any problems with OFAC. I have had zero problems with OFAC in almost 60 trips to Cuba. I simply check the box and go. That’s it. Could not be simpler or less hassle free.


#13

Bob
Not sure how that helps people who actually respect a country’s laws and try to abide by them as best they can.
Also not sure why you are not capable of keeping “on topic”.
Beardo’s link was not about personal travel arrangements. You willingly chose to ignore that and jump on your soapbox.
I note you do not respond to my questions about the information provided.
But I have realised from your many contributions here that you have no interest in doing the right thing.
So long as you, personally, are comfortable, then that’s all that seems to matter.


#14

justRobme: I have previously said you and I simply disagree on the ability to determine what the OFAC regulations mean.

I challenge anyone to determine what the OFAC regulations actually mean or what Cuban law actually is so they can comply with them. An analogy to jello is appropriate.

I have dealt with OFAC back in the days when specific licenses were required for some exemptions. I have had OFAC explain why my request for a specific license was going to be denied. I had a good idea of which licenses required what for approval. All of that became jello when “interpretations” of regulations that have not changed in 12 years went out the window with “self certification” which is essentially “don’t ask, don’t tell”. I have read much OFAC published guidance in prior years which conflicts with current interpretation simply be “unpublished” without any clue if it still applied or not. I remain convinced that the current OFAC regulations cannot be interpreted. I also believe the Obama administration made then vague and ambiguous on purpose so they could never be enforced. I understand some other have differing opinions.

One indication of the misunderstanding is all the focus on internet travel forums on the “support of the Cuban people” exemption. It seems that is all everyone talks about in the belief that is common. A frequent traveler to Cuba realizes that alone is such a small minority of travelers that it becomes a red flag itself. If one were concerned about OFAC, that would be the last exemption one should select to not attract attention to themselves. But that is what one gets from internet logic.


#15

Bob
OFAC regulations are really pretty easy to work out.
And you have no intention of challenging anyone - you merely choose to repeatedly ignore what is presented and jump onto your bandwagon.
Cuban law is not relevant to this topic.
Frankly, what happened to you in the past is also not relevant - self certification is the new normal and OFAC has been transparent in presenting examples for travellers so they can understand what is intended.
The reason internet forums focus on “support for the Cuban people” is that it appears to be one of the few areas available for self certification unless you clearly fall into one of the other areas. The fact that many travellers to Cuba have Cuban “family” connections makes that a simple OFAC choice, and it’s doubtful they will go onto an internet forum for more advice!
How about staying on topic, or open a thread which meets what you want to present.


#16

That’s an interesting thought, Bob. I hadn’t thought of it that way. I suspect that, based on some of your comments about the historical lack of enforcement, and the reasons you have mentioned to expect continued lack of enforcement, that it really doesn’t matter which excuse someone might select. For example, someone with absolutely no family in Cuba might select “family visit” and nobody will ever check, and there will never be an audit or prosecution of the false claim.
But on the other hand, most travelers want to at least feel they are complying with the rules, and “support for the Cuban people” probably is the easiest one to seem to comply with. Or, in fact, depending on how one interprets that “support,” it might even be relatively easy to actually comply.
But then I’ve made the analogy before to driving down a highway in Wyoming, and you are at the top of a hill, where you can see several miles ahead and behind and there is nothing there but the prairie. You also know that the only highway patrolman in the area is at home, sleeping, and you decide to drive a bit over the speed limit.


#17

CubaJack:

While I would never make a public blanket statement to ignore OFAC regulations as they relate to Cuba travel because they have not been enforced for at least 15 years, I do think that is a risk mitigation factor worthy of consideration.

Many would be surprised to realize that the actual Cuban travel regulations including the 12 exemptions have changed only insignificantly for at least 10 years (my era) I do believe they are much older than that. Realistically the only change has been in the traveler’s required documentation.

Until some 3-4 years ago, about half of the exemptions qualified for a general license (i.e. “self certification”) These were for family visits, government employees on official business, and others. The other half, which included all of those relating to casual travel (i.e. “person to person” & “support for the Cuban people”) required a specific license. A specific license was an actual piece of paper obtained after OFAC reviewed your specific schedule and all activities and approved such. I once traveled with one of those in 2009. The requirements to obtain OFAC approval were rigid. I was also once denied one of these specific licenses.

About 3 years ago, Obama changed the requirement to obtain the written specific license and made all travel permissible under a general license. This is the infamous “self certification”. None of the actual requirements changed, travelers were simply no longer required to obtain pre-approval. This was generally but incorrectly interpreted to mean “Cuba is open” or “no more stringent rules”. Again, the regulations and legalities never changed.

Back when a specific license (i.e. written pre-approval) there was clear detailed documentation with examples published by OFAC as to what would meet the requirements for approval and what would not. Additionally, everyone was aware of such from informal public information about licensed granted and licenses denied. BTW, “full time schedule” meant there was no time for anything else.

But when the need for specific licenses went away, all the official OFAC guidance just disappeared. They all simply became dead web links. No indication if what once was allowable had changed, been rescinded, or remained in effect. Just silence from OFAC. My personal belief is that Obama made everything so undefined and convoluted that no regulations could ever be enforced. Trump never tighten this as he never cared or had resources to do so. All Trump wanted was some lip service to get Senator Marco Rubio off his back.

Looking at the regulations which have remained unchanged for many years and OFAC current limited published interpretations, they appear simple. But if one goes back 3-4 years and see what was once published but then unpublished with no notification that OFAC posture had changed, everything becomes convoluted and contradictory.

That is the basis of my opinion why the OFAC regulations cannot be interpreted or enforced. But I have no problems with those who lacking information create some mental scenario that they are perfectly legitimate. Nor do I worry about them because of non enforcement.

BTW, it would be great to start a list of popular internet myths about Cuban travel from the US. Things like “now you can fly direct to Cuba from the US” when in reality that has existed since 1990.


#18

Post #4 has been edited with the new link for the State Department’s list of businesses that US citizens may not have direct financial transactions with:
https://www.state.gov/e/eb/tfs/spi/cuba/cubarestrictedlist/287349.htm


#19

Trump’s “naughty list” was updated again in March.

It might be easier to link to the main page - https://www.state.gov/e/eb/tfs/spi/cuba/cubarestrictedlist/index.htm


#20

We visited the new Packard hotel last month when we realized we were hungry at 10PM as when in Havana we stay across the Prado from there. The Packard is elegant from our view of the lobby and the bar and pool that overlooks the Malecon. Now learning that place is on the banned list made my 19.50 CUC hamburger taste even better. It was good but not 19.50 good.

I am sleeping well and not in fear that someone from OFAC will be knocking on my door with a citation for visiting there.


#21

For the record, they updated the naughty list with five more, including Aerogaviota - https://www.state.gov/e/eb/tfs/spi/cuba/cubarestrictedlist/291329.htm


#22

While I disagree with just about everything the US government does regarding Cuba, I am really distressed that our top notch security forces only now figured out the close connection between Aerogaviota and the Cuban Air Force. I thought everyone knew that. I understand Aerogaviota pilots are all military pilots and use the airline to keep their flight skills current. As if it wasn’t enough of a clue that the last part of the name was …gaviota and everything named …gaviota is a part of GAESA or the Armed Forces Business Enterprises Group


#23

Has been moved to:


#24

In fact, the most up to date list is - https://www.state.gov/cuba-sanctions/cuba-restricted-list/list-of-restricted-entities-and-subentities-associated-with-cuba-as-of-april-24-2019/

Now with Aerogaviota added


#25

Latest FAQs from OFAC - effective 5 June 2019.
Not good news for those who cruise.
Those previously using “group travel” arrangements under Education Activities general license will need to look elsewhere - try Support for the Cuban People.