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January 17, 2005 

ALJ Reduces Civil Penalties Proposed by OFAC for Cuba Travel-Related Violations

Administrative Law Judge (ALJ) Robert Barton has issued the first written decision in a case challenging a civil penalty imposed by the Treasury Department's Office of Foreign Assets Control (OFAC) against an individual for traveling to Cuba. In the opinion, Judge Barton ordered OFAC to reduce the proposed penalty against Craig Ostrem from $7530 to $780. An enforcement action was brought against Ostrem for traveling to Cuba for a scuba diving trip in 1999 and bringing back rum, candy and artwork to the U.S. During the hearing held before the ALJ earlier this year, OFAC had offered to reduce the penalty from $7530 to $6777.

Despite OFAC's claims that there were aggravating factors that justified the proposed penalty, the ALJ found that Ostrem was entitled to a 90% reduction in the proposed penalty based on numerous mitigating factors, including that the traveler relied on the representations of ScubaCan, a Canadian tour operator, that his trip was a "fully hosted, completely legal dive", cooperated with authorities and was a first-time offender. During the hearing, Ostrem's attorney presented the prior congressional testimony of former OFAC director Richard Newcomb indicating that tour operators outside the U.S. had attempting to lure innocent U.S. citizens into such travel, and that such reliance would be an "extraordinary" mitigating factor.

While deciding to reduce the penalties based on the facts presetned in this case, Judge Barton noted that higher penalty amounts could be justified in some cases.

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