LIST OF MITIGATING FACTORS revised 3/9/05

The following are factors which OFAC or an administrative law judge may consider when setting fines for alleged violations of the ban on travel to Cuba. OFAC rules state that the mitigating factors set out in its administrative guidelines are not meant to be the only mitigating factors they can consider. Therefore, we have developed this list by drawing from the types of mitigating circumstances used in other areas of law. Be sure not to just scan the headings. Underneath many of the main headings we list additional potential factors that are related to the main factor and might be recognized even though they do not appear in the regulations. These extra factors tend to be broader and may apply to many travelers not covered by the factor in the main heading. The small letter listed after most of the factors is the subsection of 31C.F.R. Part 501 Appx. III.B.1 from which the factor is drawn. For example, if a "j" appears at the end of the factor, then it appears at 31C.F.R. Part 501 Appx. III.B.1(j).

The traveler acted on an assurance by the trip promoter that the trip would be legal. (Congress’ intent was that this be an "extraordinary" mitigating factor; in the first case to apply it, the administrative law judge cut the proposed penalty by about 90%.)

The traveler was encouraged by others. (Though not listed, this is a mitigating factor of longstanding importance in criminal law.)

The traveler believed the travel was legal. (As in fact we believe it is under the Constitution, and other national and international law).

The travel, though unlicensed, would have qualified for a license had one been sought. (Administrative guidelines set the lowest baseline fine for such travel, 88% lower than the maximum baseline fine.) Alternatively, the purpose of the travel came very close to being licensable, was consistent with public policy, or similar to, or just as compelling as the purposes for which licenses are given. (l)

The travel was not for business purposes. (Administrative guidelines set a baseline fine amount which is 50% or more lower for travel if it was for pleasure.) Alternatively, the business aspect of the travel was insubstantial, or the travel was not for profit.

The traveler voluntarily disclosed the travel. (Administrative guidelines recommend a 50% reduction in penalty.) Alternatively, the traveler did nothing to conceal the travel, or revealed it to customs or other parties. (a)

The travel was a first offense. (Administrative guidelines use this to set the baseline amount for many fines and suggest it is good for at least a 25% reduction in penalty in all other cases.) Alternatively, the travel was the first offense of this particular kind, the first in many many years, over which the traveler believed the law had changed, the first of which they received notice that it was an offense, the first as an adult, or any other rationale that partakes of the same logic as the travel being a first offense plain and simple. (b)

The violation stems from the traveler’s inexperience in international travel or commercial transactions. (The regulation is intended for commercial enterprises and speaks of inexperience in international business, but the principle certainly makes just as much sense for an individual traveler.) (j)

The traveler undertook an effort to comply with the law. (The regulation is intended for commercial enterprises and speaks of having a compliance program in place, but the principle certainly makes just as much sense for an individual traveler.) (c)

The violation was humanitarian in nature. Alternatively, the violation was wholly benign in purpose and effect. (n)

The size of the transaction was small. (Though not specifically listed among the mitigating factors, OFAC ties fines for exports to Cuba to the size of the export in 31 C.F.R. Part 515 Appx. A.5. Also, the Eighth Amendment prohibits fines from being "excessive" taking into account the scale of the wrong.)

The traveler did not patronize government-controlled facilities or encourage slavery or prostitution. (A key purpose of the travel ban is to deny support to alleged government-sanctioned slavery and prostitution.)

The traveler has provided enforcement information to OFAC. Alternatively, the traveler has performed some other service that warrants appreciation and consideration of a lesser penalty. (g)

The traveler established a compliance program or undertook other remedial measures. (The regulation is intended for commercial enterprises, but the principle applies and it makes sense to note if the traveler has promised not to do it again.) (d, e)

The traveler has already been penalized through a customs settlement or other enforcement action. Alternatively, the traveler has suffered by having the allegations made against him that he has violated the Trading With the Enemy Act, which imposes a stigma of disloyalty and hostility to the United States, and chills the rights of free speech, association, and travel, has been harmed by the inability to obtain a timely hearing to clear his or her name, has been vexed by the seemingly irrational and arbitrary conduct of the government relating to the case, has suffered additional affront of having been targeted for prosecution on the basis of ethnicity for not being of Cuban heritage, or on otherwise arbitrary, vindictive, or discriminatory grounds. (h, i)