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On August 13, 2020, US Secretary of State Mike Pompeo issued a statement requesting that the US Department of Transportation (“DOT”) suspend private charter flights to all Cuban airports.  This action will suspend all charter flights between the United States and Cuba over which the DOT exercises jurisdiction, except for authorized public charter flights to and from Havana and other private charter flights authorized for limited purposes.  Secretary Pompeo’s statement cites the Administration’s intent to deny economic resources to the regime in order to inhibit its capacity to carry out alleged abuses and interference in Venezuela.

Background

On October 25, 2019, at Secretary Pompeo’s request, the DOT issued a notice that suspended scheduled air service between the United States and Cuban international airports other than Havana’s Jose Marti International Airport.  On January 10, 2020, at Secretary Pompeo’s request, the DOT issued a second notice that suspended all public charter flights between the United States and all Cuban destinations other than Havana.  On May 28, 2020, again in response to a request from the State Department, the DOT issued an order imposing a cap on public charter flights to Havana at 3,600 per year. Please see here and here for our blog posts on the DOT’s previous orders.  According to Secretary Pompeo, the current suspension would prevent charter operators from filling the gap in air service left by the suspensions of non-Havana scheduled air service and public charter service that took effect on December 10, 2019, and March 10, 2020, respectively.

DOT Order

On the same day as Secretary Pompeo’s statement, the DOT issued an order suspending all charter flights between the United States and all airports in Cuba, except for authorized public charter flights to and from Havana and other authorized charter flights for emergency and medical purposes, search and rescue, and other travel deemed to be in the interest of the United States.  The suspension will take effect on October 13, 2020.

The DOT’s suspension applies to charter flights operated by US and foreign air carriers pursuant to exemptions granted by the DOT, including US air taxi and commuter operations, Canadian charter air taxi operations, and all other charter or on-demand air transportation.  The suspension covers nonstop charter flights from the United States to Cuba as well as charter flights stopping at a third country (whether as an intermediate stop or as a behind or beyond point).

In addition, the DOT also tentatively decided to amend, subject to show-cause procedures, all US charter air carrier certificates and all foreign air carrier permits to preclude the operation of charter flights between the United States and Cuba, subject to the exceptions noted above.  Interested parties have until September 3, 2020 to file objections to the DOT’s tentative decision.

Author

Alison Stafford Powell has considerable experience counseling US and non-US companies on cross-border outbound trade compliance in the areas of export controls, trade and financial sanctions, anti-terrorism controls, anti-corruption and anti-money laundering rules, US anti-boycott laws, and US foreign investment restrictions under the Exon-Florio Provision. With a background also in EU and UK trade restrictions, she routinely advises non-US companies on reconciling US and EU trade regulations and on the extra-territorial impact of US trade restrictions. She is a dual US/English qualified lawyer and has worked in the Firm’s London, Washington, DC and Palo Alto offices since 1996.

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Jennifer Trock is chair of Baker McKenzie's International Commercial Practice Group and a member of its Global Aviation Group in Washington, DC. She co-leads the Firm's unmanned aircraft systems (UAS) focus team and is the Chair of the ABA's Forum Air & Space Law. Jennifer has been recognized by Chambers USA, Aviation Regulatory – National (2007-2019) and has also received honors from Euromoney’s Guide to the World’s Leading Aviation Lawyers, Infrastructure Journal and The Washingtonian.

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Alexandre Lamy joined Baker McKenzie in 2009 and currently works in the Firm's International Trade Practice Group. He assists clients with sanctions and export controls (Export Administration Regulations (EAR); International Traffic in Arms Regulations (ITAR)) and he advises clients on corporate compliance matters. Since August 2011, Alex has served on the steering group for the ABA Section of International Law’s Export Controls & Economic Sanctions Committee and is currently a Vice Chair of the Committee. He has organized several events regarding recent developments in US trade sanctions and export controls for the Committee.

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