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HavanaJournal.com: Cuba Politics

Summary of Cuba sanctions language in Ominbus Appropriations Act 2009

Posted March 11, 2009 by publisher in Cuba Politics.
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Rob Sequin | Havana Journal

In an effort to try to help Havana Journal readers to understand exactly what changes have been passed in the Omnibus Appropriations Act of 2009, we have excerpted the Cuba language from section 621 of the Omnibus Appropriations Act, 2009.

The Office of Foreign Assets Control has issued a general license notice for Cuban Americans who wish to visit close relatives in Cuba.

General License for Cuban Americans traveling to Cuba

Paragraph A

Persons subject to the jurisdiction of the United States, as defined in § 515.329 of 31 CFR chapter V, and persons traveling with them who share a common dwelling as a family with them are hereby authorized to engage in the travel-related transactions set forth in paragraphs C (1) and C (3)-(5) of § 515.560 of 31 CFR chapter V and paragraph C of this general license and additional travel-related transactions that are directly incident to visiting a close relative who is a national of Cuba, as the term is defined in § 515.302 of 31 CFR chapter V.

The authorization contained in this general license may be used only once in any 12-month period. Specific licenses may be issued on a case-by-case basis for transactions related to additional visits during the 12-month period, as well as for travel to Cuba to visit a close relative who is not a national of Cuba.

Any traveler who has a qualifying relative in Cuba may take advantage of this general license immediately. A new 12-month period will begin for each traveler upon return from a trip that is authorized pursuant to this general license.

Paragraph B

For the purpose of this general license, the term close relative used with respect to any person means any individual related to that person by blood, marriage, or adoption
who is no more than three generations removed from that person or from a common ancestor with that person.

Example to Paragraph B: Your mother’s first cousin is your close relative for the purposes of this section, because you are both no more than three generations removed from your great-grandparents, who are the ancestors you have in common. Similarly, your husband’s great-grandson is your close relative for the purposes of this section, because he is no more than three generations removed from you. Your daughter’s father-in-law is not your close relative for the purposes of this section, because you have no common ancestor.

Paragraph C

Living expenses in Cuba.

The transactions authorized by Paragraph A of this general license include all transactions ordinarily incident to travel anywhere within Cuba, including payment of living expenses and the acquisition in Cuba of goods for personal consumption there, provided that the total amount for such expenses on any day may not exceed the “maximum per diem rate” for Havana, Cuba, in effect on that day, currently set at $179 per day.

OFAC’s Guidance On Implementation Of Cuba Travel And Trade-Related Provisions

Congress has directed that none of the funds made available in the Omnibus Appropriations Act, 2009, may be used to administer, implement, or enforce the June 16, 2004 amendments made to sections 515.560 and 515.561 of Title 31, Code of Federal Regulations, related to travel to visit relatives in Cuba. In consultation with the Department of State, today Treasury has implemented this provision of the Act by issuing a general license authorizing persons subject to the jurisdiction of the United States to travel to Cuba to visit an expanded category of family members who are nationals of Cuba, defined as “close relatives,” once every 12 months for an unlimited length of stay and at the same expenditure limits as all other authorized travel to Cuba. This general license thus reinstates the authorization for family travel to Cuba that existed prior to the June 16, 2004 amendments.

Regarding US Cuba Trade Embargo

Travel to, from, or within Cuba for the Marketing and Sale of Agricultural and Medical Goods. In another provision of the Omnibus Appropriations Act, 2009, Congress has directed Treasury to promulgate regulations authorizing, by general license, travel-related transactions for travel to, from, or within Cuba for the marketing and sale of agricultural and medical goods. Treasury will implement this provision in the coming weeks. Until promulgation of new regulations, these travel-related transactions must be authorized by specific license, as set forth in section 515.533(e) of Title 31, Code of Federal Regulations.

Cash in Advance Provision

Congress also has directed that none of the funds made available in the Act may be used to administer, implement, or enforce the February 25, 2005 amendment to section 515.533 of Title 31, Code of Federal Regulations. That amendment clarified the agency’s view that the term “cash in advance” — a term used in the Trade Sanctions Reform and Export Enhancement Act of 2000 (“TSRA”) — should be given its ordinary commercial meaning, which requires payment to be received by the seller or the seller’s agent in advance, prior to shipment of goods from the port at which they are loaded. Because the Act does not amend the requirement in TSRA that agricultural exports to Cuba be either paid for by “cash in advance” or financed using a third-country bank, TSRA’s statutory provisions remain in place.

Congressman Serrano Letter

Senator Menendez was reassured by Treasury Secretary Geitner that these provisions would be “interpreted” in such a way that the language would be meaningless. The author of the language Congressman Serrano felt compelled to address this reassurance by Secretary Geitner with this public letter released today.

Congressman José E. Serrano today commented on press reports that the Treasury Department would narrowly interpret his Cuba policy provisions in the Omnibus Appropriations bill, saying that the provisions were “not subject to creative interpretation” because they have “the force of law.”

“I recently read press reports that the Treasury Department was assuring certain Senators that it would narrowly interpret the Cuba policy provisions that were in the Financial Services section of the Omnibus appropriations bill. I want to assure Cuban Americans who have been waiting to see their relatives, and agricultural businesses hoping to travel to Cuba to sell their products, that the language is not ambiguous and not subject to interpretation. When the Congress passed the bill, and President Obama signs it into law, there is no room for interpretation on the part of the Treasury Department as to how they will implement it. It is crystal clear and is law.

“In the Bush Administration, we would often see Congressional intent undermined by signing statements and creative or negligent implementation. That situation is now behind us, as President Obama basically said in his directive to agency heads on signing statements. I am troubled that the Treasury Department would seek to alleviate the policy concerns of a Senator or two by essentially promising to interpret a portion of the law a certain way. That smacks of the old style of business that we are trying to put behind us.

“If these provisions are interpreted contrary to the intent of the Appropriations Committee, where this bill originated, the Treasury Department will have to answer to the Committee in a public forum. With its inclusion, our intent becomes law, and if anyone should be getting assurances about its implementation in advance, it should be us, not those who disagree with it.

“If Treasury has any questions or concerns about these provisions, I stand ready to answer and help them understand. Otherwise, I expect the provisions to be implemented as written.”

For more information on Cuba sanctions.

Lastly, please note that this article is a summary of the Cuba language in the Omnibus Appropriations bill and contains excerpts and not the entire language. Keep in mind that this law expires on September 30, 2009. Please seek legal advice before traveling to Cuba.

Member Comments

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On March 12, 2009, bernie wrote:

Will a well informed reader and traveler suggest whay type of currency one should have on their person when traveling to Cuba??????

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On March 12, 2009, Lee wrote:

Euro’s work best

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On March 12, 2009, Miguel Gonzalez wrote:

brick by brick by brick….........happy as s—t

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On March 13, 2009, johwon wrote:

Can anyone tell by the description above or with other information if my situation would qualify for travel to Cuba. 
My husband is Cuban but we are separated.  We have 5 children together that I would like to meet their grandparents and most importantly their great grandmother before she passes.  Would I, with the current changes be able to take them?

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On March 13, 2009, publisher wrote:

I think you should seek competent legal advice as they say. First of all, it is still illegal to travel to Cuba just that the law for Cuban Americans will not be enforced.

My take is that the kids would probably be able to go but you would not qualify unless you are of Cuban descent but maybe as their mother you might qualify.

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On March 14, 2009, fd wrote:

Yes, you can go.. spouse of cuban has same travel rights as cuban

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On March 14, 2009, fd wrote:

[Here is the official langauge:  [note you are the YOUR SPOUSE]

For the purpose of this section, the term “member of your
immediate family” means any spouse, child, grandchild, parent,
grandparent, or sibling of you or your spouse, as well as any
spouse, widow, or widower of any of the foregoing. The term
“national of Cuba” means any subject or citizen of Cuba as well as
any permanent resident of Cuba, except an individual who is in Cuba
pursuant to an OFAC license. An individual who is merely traveling
in Cuba is not a “national of Cuba.”

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On March 18, 2009, publisher wrote:

Senators are now calling on the Treasury to respect the letter of the law regarding the Cuba trade language in this bill.

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On July 13, 2009, R. Miranda wrote:

Can a person go to Cuba for the purpose of getting official documents such as birth certificates and visiting the graves of grandparents?

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On July 13, 2009, publisher wrote:

I would say no. Law allows Cuban Americans to visit relatives. However, once you are there…

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On July 13, 2009, Johwon wrote:

Where would one find “competent legal advise” on Cuba?  Any suggestions?

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On July 13, 2009, publisher wrote:

Depending upon your circumstance and budget, I can recommend a couple OFAC lawyers. Use the email below and send some info.

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On July 15, 2009, R. Miranda wrote:

What are the procedures for arranging travel to CUBA BY american born citizen? Does the U.S. citizen need anything else besides the american passport? Can the person pick the date of travel or is a date assigned to the person by the cuban or american government?

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On July 16, 2009, manfredz wrote:

As an American, you need an OFAC licence.  If wanting to go as tourist, you wont get one - its as simple as that.  Now if you were Cuban born or had Cuban family in Cuba…. thats a different story ....
From Cuban side there is no limitation if American born (unless you are on their watch list for various reasons).  And since they dont stamp your passport, only your tourist card, there is no record in your passport. Thousands of Americans go every year via third countries.

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On September 13, 2010, publisher wrote:

We have updated our OFAC Cuba sanctions page at CubaLegalServices.com so if you need more information about OFAC and the restrictions on Americans’ freedoms, visit the link.