Amendments to Cuba License Exceptions for Aircraft, Vessels, and Spacecraft (AVS)

On June 5, 2019, the U.S. Department of Commerce Bureau of Industry and Security (BIS) published a final rule further restricting the types of aircraft and vessels authorized to travel to Cuba.1  Under the rule’s amendments to 15 C.F.R. § 740.15 and 15 C.F.R. § 746.2, general aviation (e.g., private and corporate air travel) is now ineligible for License Exception AVS travel to Cuba.

The new rules explicitly amended 15 C.F.R. § 740.15(a)(2)(ii) to state “[a]ny other operating civil aircraft of U.S. registry may depart from the United States under its own power for any destination, except to Cuba or a destination in Country Group E:1 [. . .].”2

Under this regulatory regime, the only U.S.-registered civil aircraft that remain eligible for License Exception AVS are commercial aircraft operating under an Air Carrier Operating Certificate, Commercial Operating Certificate, or Air Taxi Operating Certificate issued by the FAA; Foreign Air Carriers operating with FAA approval under 14 C.F.R. Part 129; or air ambulances operating under 14 C.F.R. Part 135.3

Previously, other U.S.-registered civil aircraft were authorized to travel to Cuba so long as the aircraft was not flown for the purpose of sale; the U.S. aircraft’s registration was not changed while abroad; the aircraft was not used in any foreign military activity; the aircraft did not carry any materials for which an export license was required; and the aircraft was operated by a U.S. licensed pilot. 4 The stated purpose of this regulatory change is that “[m]aking non-commercial aircraft ineligible for License Exception AVS when destined for Cuba supports the President’s policy to restrict non-family travel to Cuba.”5

Additionally, these new regulations prohibit passenger and recreational vessels from eligibility to temporarily sojourn to Cuba. Where previously 15 C.F.R. § 740.15(d)(6) allowed for these vessels to sail to Cuba so long as they complied with OFAC regulations, the rule has been amended to remove the exceptions for “passenger vessels for hire” and “recreational vessels” and only allows “cargo vessels for hire for use in the transportation of items” to make use of License Exception AVS.6

In conjunction with these changes in the regulations governing what types of U.S.-registered vessels and aircraft may travel to Cuba, the Department of the Treasury Office of Foreign Assets Control (OFAC) has altered the educational travel authorization for persons subject to U.S. jurisdiction to travel to Cuba, one of twelve such categories codified at 31 C.F.R. § 515.560(a)(1-12).  The new rule removed the authorization for group people-to-people educational travel to Cuba under 31 C.F.R. § 515.565(b).7 To accommodate travelers who already booked such trips while they were still authorized, OFAC has added a grandfathering provision to the amended § 515.565(b) authorizing certain group people-to-people educational travel that was booked prior to June 5, 2019. The remaining travel exception categories remain intact.

1 84 Fed. Reg. 108, 25986 (June 5, 2019).
2 Id. at 25988 (to be codified at 15 C.F.R. § 740.15(a)(2)(ii)) (emphasis added).
3 Id. (to be codified at 15 C.F.R. § 740.15(a)(2)(i)).
4 See 15 C.F.R. 740.15(a)(2)(ii)(A-E).
5 84 Fed. Reg. 108, 25987 (June 5, 2019).
6 Id. at 25988 (to be codified at 15 C.F.R. § 740.15(d)(6)).
7 84 Fed. Reg. 108, 25992 (June 5, 2019) (to be codified at 31 C.F.R. § 515.565(b)).

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