Legal Diving in Cuba

Salty Dog Adventures (High Ridge, Mo.) is promoting dive trips to Cuba for Americans. Salty Dog's proprietor, Captain Robert I. "Rib" Bolton, has obtained a general license from the Treasury Dept.'s Office of Foreign Assets Control (OFAC) authorizing marine research there using the fish survey methods of the Reef Environment & Education Foundation (REEF). Bolton claims that divers can now travel to the forbidden land as volunteer researchers for REEF.

In Bolton's words, "Not only are these expeditions to Cuba legal, in most cases, they are also tax deductible due to REEF's nonprofit status ... since the research expeditions are under the auspices of OFAC, the research divers are allowed to not only spend money in Cuba, but also to return to the U.S. with up to $100 of Cuban goods -- including cigars!"

Well, slow down divers. Remember our reports on Scubacan? Several Undercurrent subscribers reported traveling to Cuba with the Toronto travel wholesaler, believing that they were free from OFAC travel restrictions. Turned out that OFAC had a different idea, and what looked like a loophole turned into a noose. Some of these travelers are now facing major fines.

Bolton told Undercurrent he had run two trips on the liveaboard Oceanus from Cancun. The trips included time ashore in Havana. Apparently none of his clients have been challenged by either OFAC or the IRS. But that only leaves the matter up to further interpretation.

We checked Bolton's claims about the legality and the tax deductibility of these trips with both agencies, and the best we could come up with is a qualified "maybe."

The most sure-fire way to get into Cuba legally is to apply for a specific license from the Treasury Department, which is granted only to certain categories of applicants meeting stiff standards, such as the news media, researchers, teachers, and exchange students. What Bolton offers is an opportunity for paying volunteers to tag along under his general license.

According to OFAC's website (www.treas.gov/offices/enforcement/ofac/sanctions/cuba_res.pdf), certain categories of travelers "are permitted to spend money for Cuban travel ... under a general license without the need to obtain special permission from the U.S. Treasury Department." One of those categories is "full-time professionals whose travel transactions are directly related to professional research in their professional areas, provided that their research (1) is of a noncommercial, academic nature; (2) comprises a full work schedule in Cuba; and (3) has a substantial likelihood of public dissemination." Bolton, whose credentials include "a bachelor's degree in biology with a major in marine biology," may qualify as a fulltime professional researcher, but does this apply to his paying passengers who have no travel authorization of their own?

Rob Nichols, Deputy Assistant Secretary for Public Affairs at the Treasury Dept., told us that Salty Dog's claims are "highly suspect. We would want to take a very close look at any claim for eligibility under our general license for professional research pertaining to snorkeling and scuba diving. ... Anyone availing themselves of the general license would have to qualify in their own right, and 'Salty Dog Adventures' does not sound like an authorized travel service provider. ... I would encourage the parties to seek advice directly from OFAC by calling 202 622 2480 or by requesting guidance in writing."

OFAC does allow U.S. citizens without specific travel licenses to travel to Cuba on "fully hosted" excursions, but Bolton's trips fall outside that protected category as well. He makes it clear in his promotional blurbs that "volunteer divers will have to pay their own expenses." In OFAC's opinion, "travel to Cuba is not fully hosted if a person subject to U.S. jurisdiction pays -- before, during, or after the travel -- any expenses relating to the travel ... even if the payment is made to a third-country person or entity that is not subject to U.S. jurisdiction." Adds OFAC, "vessel owners are prohibited from carrying travelers to Cuba who pay them for passage if the owner does not have a specific license from OFAC authorizing him to be a service provider to Cuba." And here's the downside: "any person subject to U.S. jurisdiction determined to have traveled to Cuba without an OFAC general or specific license is presumed to have engaged in prohibited travelrelated transactions ... and may be asked by Federal enforcement agencies to provide a signed explanatory statement accompanied by any relevant supporting documentation." In the experience of too many Undercurrent readers, once you sign such a statement, the next thing you get is a notice of a $7500 fine, which may be appealed only at a federal hearing.

Even REEF is skeptical of Bolton's claims. REEF's executive director Lad Akins said OFAC had never contacted his organization to explore the legitimacy of Bolton's trips, though Bolton claims to be a REEF field station. Akins pointed out that REEF does not give, and cannot assume responsibility for, tax advice to its volunteers and contributors, but tax deductibility is not a slam dunk.

A spokesman from the IRS offered links to their website (www.irs.gov) which says : "You sail from one island to another and spend eight hours a day counting whales and other forms of marine life. The project is sponsored by a charitable organization. In most circumstances, you cannot deduct your expenses."

As writer-photographer Eric Hanauer reported in the final issue of Skin Diver, liveaboard diving off Cuba can be spectacular ("The underwater life is the richest I've seen in the Caribbean"). And, thousands of American divers are traveling to Cuba, albeit illegally, to enjoy this unique country. If you want to join them, do it with your eyes open, for if you sign up for one of Salty Dog's cruises, you may be risking more than just your deposit (see sidebar).