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January 28, 2011 

OFAC and Customs Issue Regulations Implementing President's Cuba Policy Changes

Today the Office of Foreign Assets Control (OFAC) and U.S. Customs and Border Protection (CBP) published in the Federal Register regulations implementing changes to the the President's recently announced changes to the U.S. ermbargo on Cuba.

As we previously indicated, these policy changes only impact very limited categories of travel to Cuba, such as academic and religious travel, and make no changes to the current policies authorizing certain limited commercial travel or sales to Cuba. U.S. tourists are still prohibited from traveling to Cuba, either directly or via third countries.

The changes made to CBP's regulations will allow new U.S. airports to accommodate flights arriving or departing for Cuba. Currently, only John F. Kennedy International Airport in New York, Los Angeles International Airport and Miami International Airport are authorized to offer flights to Cuba. However, in reality most flights to and from Cuba take place from Miami. The city of Tampa, Florida has already indicated an interest in hosting such flights.

Summary of Changes to OFAC's Cuban Assets Control Regulations

In accordance with the President's announcement, OFAC issued a final rule revising the Cuban Assets Control Regulations (CACR) (31 CFR Part 515) to implement changes applicable to academic institutions, religious organizations, remittances, and Cuban nationals living with assets in third countries.

With respect to authorized travel to Cuba, religious organizations are now authorized to sponsor travel to Cuba for religious activities under a general license contained in section 515.566 of the CACR. Previously, a paper license (known as a specific license) had to be obtained in advance from OFAC for individuals associated with a religious organizations to travel to Cuba. The general license issued by OFAC authorizes activity to take place without having to submit a license application to OFAC. However, all individuals traveling to Cuba under the general license must carry with them a letter signed by the religious organization and printed on the organization's letterhead confirming that they are authorized to travel to Cuba. The religious organizations and individual travelers must retain records regarding such travel in accordance with OFAC's recordkeeping requirements. Specific license for religious travel-related transactions to Cuba may also be issued by OFAC for other types of travel that are not authorized by the general license. Religious organizations are now permitted to maintain financial accounts in Cuba in support of such activities.

In addition, a new general license contained in section 515.565 of the CACR will authorize accredited U.S. graduate and undergraduate colleges and universities to send faculty, staff and students to Cuba for structured academic and educational programs, noncommercial academic research, participating in courses at Cuban colleges or universities and teaching at Cuban academic institutions. All travelers using this general license must carry with them a letter signed by the U.S. academic institution confirming that they are authorized to travel to Cuba.

OFAC has also restored the Clinton-era ability for "people-to-people" educational exchanges with Cuba.  However, any organizations involved in these type of activities must apply for and obtain a specific license from OFAC (section 515.565(b)).

Free-lance journalists now can travel to Cuba to pursue journalistic projects other than just articles upon receipt of a specific license from OFAC (section 515.563).

Finally, the CACR was revised to restore a statement of specific licensing policy for travel-related transactions incident to participation of clinics and workshops in Cuba.

With respect to remittance payments to Cuba, a new general license for remittances authorizes U.S. persons to send $500 to Cuba every quarter of the year, though certain Cuban government and Communist Party officials will be prohibited from benefiting from these remittances. New general licenses are available to allow religious organizations and for family members of students studying in Cuba to send remittances (section 515.570).

U.S. Customs Regulations Authorizing Additional Airports Offering Flights to and From Cuba

In order to make it easier for people to travel to Cuba, CBP issued new regulations authorizing U.S. airports to apply to CBP for authority to accept direct flights to and from Cuba in accordance with procedures outlined in the new regulation. Provided that CBP is satisfied that the airport is suitable to process these flights, CBP
will add the airport to the list of airports authorized for direct flights to or from Cuba.

The requirements to obtain clearance and permission from CBP to depart from or enter at the airport and to provide advance notice of arrival will still apply. Clearance and permission to depart from or enter at the airport must be obtained by contacting the CBP officer in charge at the authorized airport at which the aircraft departs or arrives. Advance notice of arrival must be provided either through the
Federal Aviation Administration flight notification procedure or directly to the CBP officer in charge at the authorized airport of arrival. A list of approved airports will be included on CBP's website.

Editor's Note: Thanks to Scott Douglas for assistance in drafting this post. Scott is a second year law student at Wake Forest University and is interested in international trade law.




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