An excellent news story in the Miami Herald by Douglas Hanks on the Travelocity fine, which we first blogged about here, raises some interesting questions. (Full disclosure: Hanks interviewed me for the article).
First, Hanks (being a real reporter and not a lowly blogger) called Travelocity to ask about the fine and the response that he got was a whopper, if you know what I mean:
”In no way did the company intend to sell trips to Cuba,” the spokeswoman, Ashley Johnson, wrote in an e-mail Tuesday. “The trips to Cuba . . . were unintentionally booked online because of a technical issue several years ago and it’s just now being settled.”
I’m not buying it. You can’t “unintentionally” include Cuban flights on a website and then “unintentionally” take money from a traveller and then “unintentionally” pay it to an airline for a flight to Cuba. Maybe you can unintentionally leave the “District of Columbia” off of your drop-down list of destinations; you don’t unintentionally add Cuba to that list.
The Miami Herald story also got a current travel provider to confess that they are still facilitating travel bookings to Cuba:
Kayak.com, a popular travel website operated out of Norwalk, Conn., does advertise Cuba vacations. Though Expedia, Travelocity and other large travel sites set their own prices, Kayak merely receives ”referral fees” from travel providers who get business through the site, spokeswoman Kellie Pelletier said. Because of that, she said, it is free to post the Cuba offerings
Huh? Has anyone at kayak.com actually read the Cuban Assets Control Regulations? That rationale makes no sense — there is no “referral fee” exception in those regulations.
Whether or not kayak.com is violating the Cuban embargo is a close question. The kayak.com site will generate a list of Havana hotels. If you provide dates of your intended stay, the site will take you to another site which will provide rates for those dates, will book the hotel for those dates and, presumably, will pay a referral fee back to kayak.com for the booking.
This might well be seen as more than simply providing information about Cuban hotels and would arguably seem to make kayak.com a “travel service provider” under section 515.572. “Travel service providers” are required to obtain an OFAC license. Under section 515.572, “travel service providers” are defined as parties that “provide services in connection with travel to Cuba,” including “arranging hotel accommodations.” The kayak.com website provides a list of hotels, permits a click-through reservation for specific dates for those hotels, and receives a “referral fee” in exchange. That looks like providing a service in connection with Cuba travel to me.
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Because it is another slow day in the export law world, I thought I’d use the opportunity of today’s post to note that on Tuesday Export Law Blog was one year old. Since our initial post, there have been 207 additional posts and 582 separate comments on those posts.
. . . especially when the newspaper is 
If you thought BIS could only come after you for exports of dual-use items, you would be wrong — a lesson learned the hard way by P.R.A. World Wide Trading Co., Inc., a freight forwarder which was fined $250,000 pursuant to a 
During a 
