May 5, 2015

OFAC Provides Cuba Travel Guidance, Leaves Ultimate Effect of Authorization Certification Unresolved

by Jeremy P. Paner

Today, OFAC provided guidance to aircraft and passenger vessel carriers for two issues involving travel to and from Cuba following the January 2015 regulatory amendments to the Cuba sanctions program.

Who may be authorized to travel?

First, OFAC clarified that the following individuals may be transported between the United States and Cuba pursuant to the general license for air travel or specific license for commercial passenger vessels:

  1. Persons subject to the jurisdiction of the United States traveling to or from Cuba (to include unblocked Cuban nationals residing in the United States);
  2. Any individual traveling between the United States and Cuba on official business of the U.S. government, a foreign government, or an intergovernmental organization of which the United States is a member or in which the United States holds observer status;
  3. Cuban nationals applying for admission to the United States with a valid visa or other travel authorization;
  4. Third-country nationals traveling from Cuba to the United States with a valid visa or other travel authorization; and
  5. Cuban nationals present in the United States traveling to Cuba.

Cargo and accompanying baggage

OFAC also clarified the type of cargo and accompanying baggage authorized carriers may transport between the United States and Cuba. OFAC advised that cargo and baggage accompanying authorized travelers from the United Sates to Cuba is permissible if that export is authorized by Commerce’s Bureau of Industry and Security BIS.  This logical in light of the OFAC regulation authorizing all transactions ordinarily incident to the export to Cuba of items licensed or otherwise authorized by BIS.

Authorized travelers from Cuba to the United States may carry as accompanying baggage:

  1. Persons subject to U.S. jurisdiction – $400 of Cuban goods for personal use, of which no more than $100 may be alcohol or tobacco; authorized goods produced by Cuban entrepreneurs; and any temporarily exported authorized items
  2. Foreign nationals – any value of Cuban goods, so long as they are not in commercial quantities and not imported for resale, and up to $100 in Cuban alcohol and tobacco for personal use; authorized goods produced by Cuban entrepreneurs; and any temporarily exported authorized items

Certification from travelers

Lastly, OFAC advised U.S. travel and carrier service providers to retain certification from each authorized traveler to Cuba. To date, OFAC has not commented as to whether good faith reliance on this customer provided certification will shield financial institutions, travel service providers, or carriers from civil penalties. Although this assurance would further support President Obama’s foreign policy objectives by facilitating authorized travel, I do not expect OFAC to ever articulate such a position.

Financial institutions, and  in particular credit card companies, must therefore continue to be vigilant in providing services to purportedly authorized travelers to Cuba. Authorized travelers to Cuba should therefore plan on bringing cash.