Sudden Cuba Restrictions Leaving Operators in a Bind

The U.S.’s decision to immediately prohibit Part 91 flights to Cuba has left “scores and scores of people in a bind,” according to Eric Norber, founder of Cuba Handling, which specializes in facilitating private aircraft travel to and itineraries in Cuba.

New regulations were released and took effect on June 5 that effectively banned both privately operated N-numbered aircraft, U.S. cruise ships, and other U.S. private vessels (such as fishing and sailboats) from traveling to Cuba.

The regulatory changes essentially reinstated a requirement for licensing for private aircraft travel to Cuba but at the same time said a license would not be granted except under rare cases. Licensing requirements for these operations had been eliminated under the Obama Administration. There was no grandfathering provision for pre-arranged private aircraft or cruise ship travel.

Meanwhile, the Trump Administration also eliminated the people-to-people category for travel to Cuba. This was one of a dozen categories under which people were permitted to travel to Cuba, and arguably the most commonly used reason for such travel. However, the U.S. government did grandfather pre-arranged travel for people-to-people purposes.

The Department of Commerce’s Bureau of Industry and Security (BIS), the Department of the Treasury’s Office of Foreign Assets Control (OFAC), and the Department of State said they were coordinating on the policies to restrict non-family travel “to hold the Cuban regime accountable for its repression of the Cuban people and its support of the Maduro regime in Venezuela,” the agencies said.

“Specifically, this rule amends License Exception Aircraft, Vessels and Spacecraft (AVS) in the Export Administration Regulations (EAR) to remove the authorization for the export or re-export to Cuba of most non-commercial aircraft and passenger and recreational vessels on temporary sojourn,” the rule said. “Additionally, this rule amends the licensing policy for exports and re-exports to Cuba of aircraft and vessels on temporary sojourn to establish a general policy of denial absent a foreign policy or national security interest as determined by the U.S. Government.”

“This is tough to read and understand. Nothing new about that,” said OpsGroup in a notice about the changes. But the net result is “you cannot operate an N-reg aircraft privately to Cuba for any reason. This includes Corporate. …it’s a no go.”

Universal Weather & Aviation further said that the agency indicates licenses will be issued only in extraordinary circumstances. Typically this would involve the security of the U.S.

“The way the changes were drafted and worded, it seemed to be poorly coordinated across the different types of travel to Cuba, including the different categories and the different means of travel,” added Norber. This has created a quandary, he said, because many people who booked cruises under people-to-people are grandfathered under their reason for the travel but are not able to get there because the cruises were specifically and immediately prohibited.

“It’s paradoxical,” Norber said. “Unfortunately it’s not the first time we’ve seen confusing or conflicting wording or regulations.” Even when the Obama Administration relaxed the regulations by executive order, those orders were in conflict with existing regulations and it took some time to sort out.

As for the effective ban on private aircraft, he said his own company had numerous clients who have had trips planned to Cuba. “They’ve been planning well ahead. In some cases, they have paid ahead for the permits, the handling, and the facilitation of the flight. In the course of 24 hours, their trip was no longer permitted,” said Norber. This has left those operators in the lurch, he added.

While private aircraft are essentially banned (there will be exceptions when used for the security of the U.S. or safety of the air transportation system), charter and scheduled airlines continue to be permitted, as do air ambulance operations. Norber advised that those traveling must ensure that they fall under the 11 permitted categories of travel to Cuba. “The changes simply alter how people get to Cuba. It restricts their options,” he said, but people can still get there.

Regulations banning private aircraft will affect hundreds of operations every year, Norber said. When the rules were first relaxed, Norber’s company alone had handled well over 1,000 requests a year for private non-charter flights to Cuba. That initial bubble has deflated a bit over the past 12 to 18 months, but flights were still well into the hundreds, he said. He believes that the threats of the changes may have served as a deterrent in recent months.

As for those who had paid in advance to for what is now impermissible travel, Norber was confident that the Cuban government and businesses would work with operators on refunds. He added, in his experience, Cuba has worked to accommodate such changes and they have viewed the travel from the U.S. generally favorably. The restrictions are U.S.-driven rather than spurred from Cuba, he stressed.

OpsGroup agreed, noting Cuban authorities reiterated: “In our country, there is no regulation in this regard. They can fly over and land [with] registrations of any nationality without any distinction, provided they meet the requirements requested.”

“As we would expect, none of the restrictions come from the Cuba side,” OpsGroup said. “So everyone continues to be welcome in Havana, it’s just the U.S. government that is restricting matters for U.S. operators.”