BREAKING NEWS: North Pole spokeself Mr. Elf E. McElfface contacted Export Law Blog with unsettling information. Apparently Donner and Blitzen are under the weather meaning that Santa will have to make his annual Christmas Eve run with six reindeer instead of his normal complement of eight. As readers will recall from the Press Release posted below back in 2016, OFAC’s rules were amended to permit Santa to visit both the United States and Cuba, provided that he went to Cuba first and only gave Cuban children EAR99 gifts. Otherwise, he would be landing in the United States with a sleigh containing toys in which Cuban children had an interest in violation of section 515.207(b) which was not waived by section 515.550(b).

Santa is concerned that requiring the reindeer to fly over the United States from the North Pole to Cuba and then back to the United States will unduly strain the six reindeer that will be making the run. Mr. McElfface pointed out that none of us, including the reindeer who are somewhere around three hundred years old (except for Rudolph who is 262 years old), are getting any younger. So, although Santa and the six healthy reindeer will do their best under these constraints, children in the United States should be prepared that this year there may be nothing (not even a lump of coal) under the tree for them. A GoFundMe campaign is in the works to purchase several tons of coal to be delivered to OFAC should any U.S. children be impacted by OFAC’s Cuba First rules for Santa.

FOR IMMEDIATE RELEASE
MEDIA CONTACT: Elf E. McElfface, [email protected] or (951) 262-3062

Santa’s Village, North Pole – Santa Claus today, on behalf of himself, Mrs. Claus and the 40,000 elfployees of the Santa Foundation, expressed his gratitude to the Office of Foreign Assets Control for its timely revision of its rules to grant Santa clear authority this year to visit children both in the United States and Cuba. For years, Santa’s efforts to bring holiday cheer to children of both countries has been thwarted by section 515.207 of the Cuba regulations which would prohibit Santa’s sleigh from landing in the United States while toys for Cuban children remained in the sleigh or in landing in the United States if those toys had been delivered to Cuban children first.

Today’s action waives these restrictions if Santa’s sleigh only carries items that would, if they were subject to the EAR, be EAR99 or controlled only for AT reasons. This ends the long struggle over whether teddy bears and other toys — which are not food, medicine, or personal communications devices — could only be delivered to Cuban children in wrapped parcels with the child’s name and address written on the outside and with the statement “GIFT—Export License Not Required” also marked on the parcel package. Notwithstanding the diligence and timely efforts of Santa’s elfployees, compliance with these requirements for each non-naughty child in Cuba has heretofore been impossible.

News of the OFAC announcement led to loud cheers and applause throughout Santa’s Village. Elf E. McElfface, Santa’s spokeself, wiped a tear of joy from his eye as he said to the elves in one of Santa’s workshops that he never believed that this would occur in his lifetime, which was saying a lot given that the average life expectancy of an elf on the North Pole is currently just over 500 years.

As Christmas approaches, Santa said that he was looking forward to this year’s delivery of toys and goodies to the nice children throughout the world more than ever before and reminded children everywhere, both in Cuba and the United States, that they could call his hotline at +1 (951) 262-3062 to leave their Christmas wishes and toy requests.

This press release may include predictions, estimates or other information that might be considered forward-looking. While these forward-looking statements represent the Santa Foundation’s current judgment on what the future holds, they are subject to risks and uncertainties that could cause actual results to differ materially. You are cautioned not to place undue reliance on these forward-looking statements, which reflect our opinions only as of the date of this press release. Please keep in mind that we are not obligating ourselves to revise or publicly release the results of any revision to these forward-looking statements in light of new information or future events.

Last week the State Department changed its travel advisory on Cuba from “reconsider travel” to “exercise increased caution.”  The “reconsider travel” warning was apparently based on the sonic attacks on diplomats in Cuba.  The decision to change to “exercise increased caution” came after the State Department concluded that sonic attacks on private U.S. citizens was unlikely.

Still this business of travel warnings appear to have little, if any, relation to the actual safety of the destination.  There are no warnings about the safety of travel to Belize even though between 2009 and 2016, 16 Americans were murdered in Belize.  That put Belize as the seventh most dangerous country for Americans as measured by its  death rate of 1.02 per 100,000 American tourists.  During that same period, only two people were killed in Cuba giving it a death rate of 0.08 per 100,000 American tourists, approximately 12 times lower than that of Belize.  Of course, given the U.S. homicide rate of  5.3 per 100,000, it’s probably safer to travel to Cuba, or even Belize, than to stay home in the United States.

A number of news sites commented on this change.  But one of them, namely Newsweek, caught my eye when it decided to add this statement about travel to Cuba:

 The only legal way for U.S. citizens to travel there is by applying to the Treasury Department’s Office of Foreign Assets Control for a license under one of 12 categories of travel.

Good grief.  Is Google not working at Newsweek these days?  Those twelve categories mentioned in the quote are for general licenses, you know, the ones that do not require a specific OFAC license application.  In case the Newsweek reporter wanders by and reads this post, here is the link to the OFAC regulation noting that general licenses are available for each of those categories.

So, as you’ve heard before, don’t believe everything you read on the Internet unless, of course, you read it here.

One of the things that pops out from the State Department’s Naughty List of Cuban businesses is all the beverage companies on it, which seems odd. I mean, honestly, how much can American tourists spend on TropiCola? How much of that will wind up in the pockets of Cuban spies and the Cuban military? Is the Cuban military going to crumble when it can’t sell TropiCola to American tourists?

On the list are Najita (orange soda), Cachito (sparkling lemonade), TropiCola, and rum producers Ron Caney and Ron Varadero. Havana Club Rum, the gold standard of Cuban rum, is, inexplicably, not on the Naughty List.

The relevant regulation here is the new section 515.209 of the Cuban Assets Control Regulations (“CACR”) which forbids “direct financial transactions” with any entity on the Naughty List. But don’t pin your hopes on the word “direct” because we’re talking OFAC here and we’re in the Upside Down where direct actually means indirect. When you buy TropiCola from a street vendor, that’s a direct transaction in the Upside Down where OFAC lives and an indirect transaction in the normal world.

For purposes of this prohibition, a person engages in a direct financial transaction by acting as the originator on a transfer of funds whose ultimate beneficiary is an entity or subentity on the State Department’s List of Restricted Entities and Subentities Associated with Cuba (“Cuba Restricted List”) … , including a transaction by wire transfer, credit card, check, or payment of cash.

So, when you give cash to bar in Havana to purchase a Cuba Libre made with Caney Rum and TropiCola, the ultimate beneficiaries are, arguably, TropiCola and Ron Caney. Perhaps an argument could be made that since both companies have already been paid, they aren’t the ultimate beneficiary of your payment to the bar. But, if section 515.209 of the CACR only applies when you buy Tropicola or Caney Rum directly from the bottler, why include them on the Naughty List? What U.S. tourist will ever deal directly with the bottler?

And since we made a trip to the Upside Down, I am compelled to add one thing: #JusticeForBob (spoiler alert!).

Photo Credit: Tropi Cola by Markus L [CC-BY-NC-2.0 (https://creativecommons.org/licenses/by-nc/2.0/)], via Flickr https://flic.kr/p/egCzwi [cropped and processed]. Copyright 2010 Markus L