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Cuba Travel Update: U.S. Regulators Amend Key Rules

On June 5, 2019, the Department of Commerce Bureau of Industry and Security (BIS) amended an important license exception which generally permitted the temporary sojourn of civil aircraft and vessels to Cuba. Specifically, BIS eliminated the license exception for use by non-commercial aircraft and passenger and recreational vessels sailing to Cuba. BIS also amended its licensing policy for such aircraft and vessels establishing a general policy of denial. On the same day, the Department of the Treasury eliminated its authorization for group people-to-people educational travel to Cuba.

Department of Commerce Bureau of Industry and Security

Aircraft (EAR 740.15(a)(2))
Prior to the BIS’s announcement, commercial and non-commercial civil aircraft subject to the United States’ Export Administration Regulations (EAR) were potentially eligible for license exception Aircraft, Vessels, and Spacecraft (AVS) to fly to Cuba and remain in the country for a short period.

However, the amended regulations will no longer permit U.S.-registered non-commercial aircraft to use AVS. Under the amended regulations the only civil aircraft of U.S. registry that remain eligible for license exception AVS are commercial aircraft operating under Air Carrier Operating Certificates or certain other Federal Aviation Administration Certificates per 740.15(a)(2)(i). The regulations do not change the application of AVS for foreign-registered aircraft.

Vessels (EAR 740.15(d)(6))
The amended regulations removed passenger and recreational vessels from eligibility for use of license exception AVS. This includes cruise ships, sailboats, fishing boats, and other similar vessels that are subject to the EAR. According to BIS, only cargo vessels are eligible to use AVS. Informal guidance indicates that cruise operators or other non-cargo vessel operators planning travel to Cuba will have to apply for specific licenses. These applications are likely to be rejected under BIS’s new policy of denial.

General Policy of Denial
License applications to Cuba for temporary sojourn of aircraft and vessels—other than aircraft operated by certified air carriers, or cargo vessels for hire—are now subject to a general policy of denial. Instructively, the new regulation indicates that “applications for exports or reexports of private and corporate aircraft, cruise ships, sailboats, fishing vessels, and other similar aircraft and vessels on temporary sojourn to Cuba will generally be denied.”

Department of Treasury

Group people-to-people educational travel (31 CFR 515.565(b))
The Office of Foreign Assets Control (OFAC) has announced the end of a general license that authorized group people-to-people educational travel to Cuba. However, OFAC will permit individuals to travel under this general license if at least one travel-related transaction has been completed, such as the purchase of a flight or reservation of accommodations. In connection with this change, OFAC clarified that the export or reexport of aircraft or vessels used to provide carrier services to Cuba require a separate authorization from BIS.

In practice, although OFAC may have grandfathered certain individuals to be eligible for group people-to-people travel, their plans may be affected since carriers must apply to BIS for specific licenses which are now subject to a general policy of denial.