Longtime friend and blog reader Pat had a good catch (so to speak) with respect to yesterday’s post on the Ernest Hemingway International Billfishing Tournament in Cuba. The post noted that participation in the tournament by U.S. persons might be covered by the new OFAC General License in section 515.567(b) relating to participation in competitions in Cuba. Whether that license would apply depends upon whether Cubans could participate in the tournament, something which I thought was perhaps affected by the high cost of participation in the tournament.

Even if the OFAC license applied, U.S. participants who wanted to take their own boats into Cuban waters would need to deal with the temporary export of the boat into Cuban territorial waters, an export controlled by BIS. I noted that BIS had granted such licenses, but Pat pointed out in a comment to yesterday’s post that last September BIS amended license exception AVS to permit temporary sojourns of less than 14 days by U.S. recreational boats in Cuban waters as long as it was pursuant to travel authorized by a general or specific license from OFAC.

That’s a great point, and I had forgotten about the amendment to License Exception AVS. It also, given the 14 day sojourn limitation, raises the issue of the OFAC rule in section 515.207 that prohibits a boat that has entered Cuban waters and purchased goods (in this case, think live bait) from entering a U.S. port for 180 days.

OFAC does have an exception in section 515.550 for return in advance of this date by “vessel used solely for personal travel (and not transporting passengers)” and where the export was covered by BIS’s license exception AVS. As usual, OFAC’s drafting leaves much to be desired given that the distinction between personal travel and transporting passengers may not always be clear. Probably the distinction rests on whether the other passengers are paying or not, excluding, I suppose, personal friends sharing expenses. But I’m not sure I would want to run the risk of overstepping this not very well drawn line.

What about chartering a fishing boat in Miami to participate in the tournament? Although that would still probably be a “recreational vessel” covered by license exception AVS, it’s not clear whether that would be personal travel (by the charterers) or transporting passengers (by the captain and crew). I, for one, would want specific guidance from OFAC before getting on that boat.

ABOVE: Messrs. Wilkins and
Whitlock in Cuba

[See update to this post here.]

Every year Cuba has an internationally famous sport fishing tournament. Fisherman from the United States have always cast envious eyes at the tournament just a short hop a way from U.S. territorial waters, but, obviously, the U.S. embargo on Cuba poses just a few tiny problems.

Stan Wilkins, a Kansas City lawyer just published an article in the Kansas City Star detailing his participation in the tournament with his friend Bob Whitlock, both pictured to the right with Havana in the background. This provides a good opportunity to discuss the regulatory requirements in play, particularly since Mr. Wilkins says little about how he actually managed to fish the tournament, other than to say, quite incorrectly, that “[f]ishermen may qualify for travel under the new ‘general license’ category.”

Given that there is no general license for “fishermen,” the general license that would most likely be relevant and available here is the one set forth in section 515.567(b). That general license covers “athletic and other competitions.” No offense to any fisherman out there, but I’d say that the fishing tournament is an “other.” (This is probably because when I go fishing it’s not terribly athletic. My arms mostly get used to carry the beer can to my mouth and almost never to pull an actual fish out of the water. For some reason, incomprehensible to me, fish always turn their noses up at my bait and lures.) Certainly, the people-to-people general license won’t work unless Cuban fish count.

There is, however, a significant qualification to the General License for athletic and other competitions: the competition must be “open for attendance, and in relevant situations participation, by the Cuban public.” I’d say that since you can’t attend a fishing tournament by, say, sitting in lawn chairs on the beach, this is one of those “relevant situations” where the tournament must be open to participation by Cubans.

The official website registration form does have “Cuba” listed as a country in its drop down list, so Cubans can, at least in theory, register and participate. But the site also lists a registration fee of 450 CUC (or about US$450). Given the average salary of Cubans is approximately $20 CUC per month, it seems fair to wonder if an event that requires an amount equal to 2 years salary is really open to Cubans. But I suppose setion 515.567(b) could be read to say that putting Cuba in the drop down list on the registration form is enough.

Readers of this blog, particularly those who remember the sad saga of a ship called Lethal Weapon, probably recognize another procedural hurdle to participation by U.S. fishermen, at least fishermen who want to use their own boats and equipment (which is, of course, more or less the point). Sailing into Cuba for the tournament is an export, albeit temporary, of the boat and requires a license from BIS. BIS has granted them in the past, with conditions, so this part is doable, even if it is another layer of red tape.