Today, the Office of Foreign Assets Control (“OFAC”) amended the Cuban Assets Control Regulations to, among other things, expand the general licenses authorizing travel by U.S. citizens to Cuba. Under the new amendments, U.S. citizens can travel to Cuba under the people-to-people general license without doing so under the auspices of a sponsoring organization. As long as the individual arranges for himself or herself a “full-time schedule of educational exchange activities that will result in meaningful interaction between the traveler and individuals in Cuba,” the trip is authorized under the general license for educational activities in section 515.565. The amended rules still exclude travel that is “primarily tourist-oriented” but eliminates the exclusion for “self-directed educational activities that are intended only for personal enrichment.”

A new example tries to grapple with the distinction between a trip that is primarily tourist-oriented and a permitted self-directed activity that involves a meaningful exchange with individual Cubans:

An individual plans to travel to Cuba to rent a bicycle to explore the streets of Havana, engage in brief exchanges with Shopkeepers while making purchases, and have casual conversations with waiters at restaurants and hotel staff. None of these activities are educational exchange activities that will result in meaningful interaction between the traveler and individuals in Cuba, and the traveler’s trip does not qualify for the general license.

In that case, go directly to OFAC jail; do not pass go. As you might imagine, it may be difficult for individuals, anxious to swill down a few mojitos in Old Havana before there is a Starbucks on every corner and an Olive Garden in every storefront, to grasp the difference between a meaningful exchange and a pub crawl. The checks and balances of a sponsoring organization will be absent.

Worse yet, consider this: under the rules for the people-to-people license, the individual will need to “retain records sufficient to demonstrate” a “full-time schedule of activities” that result in a meaningful interaction with Cubans (other than waiters, bartenders and hotel staff). Forgive my cynicism (or not), but a large number of individuals engaged in self-directed people-to-people (other than waiters, bartenders and shopkeepers) travel are not going to have a clue as to how to do this. Unless this is intended to be a requirement that is never enforced and a concealed license for tourism in Cuba, this is not going to end well for many people relying on this self-directed license. Don’t get me wrong, as you can imagine, I’m all for unfettered travel to Cuba. But I really don’t relish the possibility that, 18 months from now, I’ll be getting calls to help out a friend whose kids went to Cuba and thought that their Instagram account qualified as adequate documentation of their self-directed people-to-people trip to Cuba.

Photo Credit: Mojito by Sami Keinänen [CC-BY-SA-2.0 (http://creativecommons.org/licenses/by-sa/2.0)], via Flickr https://flic.kr/p/4GyGSs [cropped]

A group of publishers have just petitioned the White House to “End the Book Embargo Against Cuba.” Say what? It’s illegal to send books to Cuba or import books from Cuba? Not so much. Due to the information exception in the Berman amendment, the import of books from, and the export of books to, Cuba is permitted and may not be forbidden by OFAC. But you would never know that from the petition.

Of course, what’s really going on here is that the information exception, as narrowly construed by OFAC, is defined to include only information and books already in existence. You can import Che Guevara’s El Diario del Che en Bolivia from Cuba and export Henry James’s What Maisie Knew to Cuba because both works are already in existence. What you can’t do is pay an author in Cuba to write a book for you and edit it for publication, which is, I suppose, what the publishers, however inartfully, are getting at.

The publishers do have an excellent argument to make, and it is somewhat baffling that they did not make it directly. Under the recent amendments to the Cuban Assets Control Regulations, movie, television and record companies are allowed to go hog-wild in Cuba, hiring Cubans to work on “filming or production of media programs (such as movies and television programs), the recording of music, and the creation of artworks in Cuba,” leaving book publishers behind in the dust. That, simply put, does not make an ounce of sense. I suspect that given that many publishers also have interest in music and movie production, they aren’t anxious to complain openly about differential treatment of movies, music and books.

Photo Credit: Poro en el mercado de libros usados by Javier Ignacio Acuña Ditzel [CC-BY-SA-2.0 (http://creativecommons.org/licenses/by-sa/2.0)], via Flickr https://flic.kr/p/5xQkWj [cropped]