Back in 2007, we published a post on OFAC’s inquiry into the Michael Moore film Sicko, a film that, it was safe to assume, was not on the current administrations list of 10 best films of the year. Having learned that filmmaker Moore filmed part of the documentary film Sicko in Cuba without a license claiming he had the right to do so under the general license for journalistic activities, OFAC demanded that Moore provide proof that he was “regularly employed as a journalist by a news-reporting organization.” We found this an odd request given that OFAC had not been similarly miffed when Charlize Theron filmed a documentary on hip-hop in Cuba claiming eligibility under the general license for journalism. Of course, Theron’s film was critical of Castro and Moore’s was not.

Well, the new Cuba regulations, which were released today and which implement the changes previously announced by the White House, have a provision to put to rest whether a documentary filmmaker must be employed by CNN or the like (or at least say nasty things about Castro) in order to qualify for a general license to travel to Cuba. Under the amended section 515.564 relating to professional research, OFAC notes:

The making of a documentary film in Cuba would qualify for the general license in this section if it is a vehicle for presentation of the research conducted pursuant to this section.

This effectively takes the issue of Cuba documentaries out of the journalism general license and put them into the professional research general license, thus eliminating any need for the documentary filmmaker to prove regular employment by a news-reporting organization. Of course, under this analysis, the documentary filmmaker would have to establish that the film, and the research it embodies, relates to the filmmaker’s “area of expertise.” That probably means that Justin Bieber can’t go to Cuba to film a documentary on, say, alternate dispute resolution mechanisms, filmmakers like Michael Moore can go to Cuba to film segments related to their documentary projects.

(I’ll have more to say about the new regulations over the weekend.)

A spokesman for the Treasury Department’s Office of Foreign Assets Control (“OFAC”) told Export Law Blog this morning that discussions between OFAC and the North Pole over Santa Claus’s Christmas Eve itinerary had once again broken down and were not expected to be resumed before Santa’s scheduled departure on December 24 at 10 pm EST.

The dispute arose from a dilemma that the U.S. sanctions against Cuba posed for Santa’s planned delivery of toys to children in Cuba. If Santa delivers toys for U.S. children first, there will be toys destined for Cuba in the sleigh in violation of 31 C.F.R. § 515.207(b). That rule prohibits Santa’s sleigh from entering the United States with “goods in which Cuba or a Cuban national has an interest.” On the other hand, if Santa delivers the toys to Cuban children first, then 31 C.F.R. § 515.207(a) prohibits the sleigh from entering the United States and “unloading freight for a period of 180 days from the date the vessel departed from a port or place in Cuba.”

A press release from the North Pole announced that the OFAC rules left Santa no choice but to bypass the children of the United States this Christmas. A spokesman from OFAC warned that if Santa attempted to overfly the United States, his sleigh would be forced to land and his cargo seized. He continued:

We know that the outcome is harsh, but we cannot allow the Cuban regime to continue to be propped up by Santa’s annual delivery of valuable Christmas toys to Cuban children. We also note that the proposed rule that might in the future allow entry into the United States by sleighs that were on humanitarian missions in Cuba is not yet in effect and may still be overruled by Congress.

Congressional leaders did not return our calls.

This post is an annual tradition and appeared previously in 2007, 2008, 2009, 2010, 2011, 2012 and 2013 in slightly altered form. Alert readers will notice a small addition to this year’s post.

Export Law Blog would like to take the opportunity of this post to extend its best holiday wishes to all of its readers. Posting will be light between now and the end of the holidays.