Federal Register / Vol. 61, No. 97 / Friday, May 17, 1996 / Notices 24955

text, or, at a minimum, an outline of

comments they proposed to make orally.

Such comments will be limited to ten

minutes in length. Any interested

person also may file a written statement

for consideration by the Joint Board and

Committee by sending it to the

Committee Management Officer.

Notifications and statements should be

mailed no later than June 19, 1996, to

Mr. Robert I. Brauer, Joint Board for the

Enrollment of Actuaries, c/o Office of

Director of Practice, Internal Revenue

Service, Suite 600, 801 Pennsylvania

Avenue, NW, Washington, DC 20004 or

by facsimile transmission to 202–376–

1420.

Dated: May 9, 1996.

Robert I. Brauer,

Advisory Committee Management Officer,

Joint Board for the Enrollment of Actuaries.

[FR Doc. 96–12491 Filed 5–16–96; 8:45 am]

BILLING CODE 4830–01–U

DEPARTMENT OF JUSTICE

[AG Order No. 2029–96]

Summary of the Provisions of Title III

of the Cuban Liberty and Democratic

Solidarity (LIBERTAD) Act of 1996

AGENCY: Department of Justice.

ACTION: Notice.

SUMMARY: In accordance with the

requirement of section 302(a)(8) of the

Cuban Liberty and Democratic

Solidarity (LIBERTAD) Act of 1996, The

United States Department of Justice is

publishing this notice summarizing the

provisions of Title III of the Act. Title

III makes persons who knowingly and

intentionally ‘‘traffic’’ in confiscated

properties, as defined in the Act, subject

to private civil damage suits in Federal

district court.

EFFECTIVE DATE: This notice is effective

May 17, 1996.

FOR FURTHER INFORMATION CONTACT:

David E. Bradley, Chief Counsel,

Foreign Claims Settlement Commission,

Department of Justice, Washington DC

20579, (202) 616–6975.

SUPPLEMENTARY INFORMATION: On March

12, 1996, President Clinton signed into

law the Cuban Liberty and Democratic

Solidarity (LIBERTAD) Act of 1996, P.L.

104–114 (also known as the ‘‘HelmsBurton Act’’). Title III of the Act

discourages foreign investment in

properties that were expropriated by the

Cuban Government on or after January

1, 1959, without compensation, from

persons who are now Untied States

nationals. Title III makes persons who

knowingly and intentionally ‘‘traffic’’ in

such confiscated properties subject to

private civil damage suits in Federal

district court.

The Act defines ‘‘trafficking’’ broadly,

with several exceptions, as set forth

below. A trafficker may be liable to the

U.S. claimant for the value of the claim,

plus interest, reasonable attorney’s fees

and court costs. In addition, under

certain circumstances described below,

a person who trafficks in U.S. claimed

property may be liable to the claimant

for triple the amount of the value of the

claim, excluding interest, fees and court

costs.

Title III is scheduled to take effect on

August 1, 1996. However, the law does

not immediately permit U.S. claimants

to bring suit to recover from traffickers.

First, traffickers will have a three month

‘‘grace period’’ beginning on the

effective date during which they may

dispose of their interest in the claimed

property and avoid liability under Title

III. Under the scheduled effective date,

therefore, traffickers who dispose of

their interests in confiscated property

before November 1, 1996, will not be

subject to liability to the owner of the

claim. Second, until March 13, 1998,

only those persons with claims that

were certified by the Foreign Claims

Settlement Commission (‘‘FCSC’’) may

bring a Title III lawsuit. Third, the Act

provides the President with the

authority to suspend the effective date

for six months, and for additional six

month periods, if he determines

suspension is necessary to the national

interests of the United States and will

expedite a transition to democracy in

Cuba. Additional requirements and

conditions are described below.

Section 302(a)(8) of the Act requires

the Attorney General to publish in the

Federal Register not later than sixty

days after enactment ‘‘a concise

summary of the provisions of this title,

including a statement of the liability

under this title of a person trafficking in

confiscated property, and the remedies

available to United States nationals

under this title.’’ This notice and the

accompanying Summary of the

provisions of Title III fulfill the Attorney

General’s obligations under this section.

The Department has coordinated the

issuance of this Summary with the

Department of State.

Interested persons should refer to the

text of the Act itself or consult a private

attorney for further information and

clarification.

For the reasons set forth in the

preamble, and by the authority vested in

me as Attorney general, I hereby issue

the following Summary of the

Provisions of Title III of the Cuban

Liberty and Democratic Solidarity

(LIBERTAD) Act of 1996:

Summary of the Provisions of Title III

of the Cuban Liberty and Democratic

Solidarity (LIBERTAD) Act of 1996

1. Liability Under Title III

(a) Under section 302(a)(1) of Title III

of the Cuban Liberty and Democratic

Solidarity (LIBERTAF) Act of 1996

(hereinafter ‘‘Title III’’) subject to certain

requirements, conditions, and possible

suspensions, a United States national

with a claim to property expropriated by

the Government of Cuba on or after

January 1, 1959, may bring a private

lawsuit in U.S. federal district court

against a person who trafficks in that

property beginning three months after

Title III’s effective date. The scheduled

effective date is August 1, 1996, subject

to the President’s authority to suspend

Title III.

(b) Section 4(13) of the Act defines a

trafficker as a person who knowingly

and intentionally:

(i) Sells, transfers, distributes,

dispenses, brokers, manages, or

otherwise disposes of confiscated

property, or purchases, leases, receives,

possesses, obtains control of, manages,

uses, or otherwise acquires or holds an

interest in confiscated property;

(ii) Engages in a commercial activity

using or otherwise benefiting from

confiscated property; or

(iii) Causes, directs, participates in, or

profits from trafficking by another

person, or otherwise engages in

trafficking through another person,

without the authorization of any United

States national who holds a claim to the

property.

(c) Trafficking under section 4(13)

does not include:

(i) The delivery of international

telecommunication signals to Cuba;

(ii) The trading or holding of

securities publicly traded or held,

unless the trading is with or by a person

determined by the Secretary of the

Treasury to be a specially designated

national;

(iii) Transactions and uses of property

incident to lawful travel to Cuba, to the

extent that such transactions and uses of

property are necessary to the conduct of

such travel; or

(iv) Transactions and uses of property

by a person who is both a citizen and

a resident of Cuba, and who is not an

official of the Cuban Government or the

ruling political party in Cuba.

(d) Section 4(11) defines ‘‘person’’ for

purposes of the Libertad Act as any

person or entity, including any agency

or instrumentality of a foreign state.

(e) For purposes of Title III, ‘‘United

States national’’ is defined under
24956 Federal Register / Vol. 61, No. 97 / Friday, May 17, 1996 / Notices

section 4(15) to mean (i) any United

States citizen, or (ii) any other legal

entity which is organized under the

laws of the United States, or of any

state, the District of Columbia, or any

commonwealth, territory, or possession

of the United States, and which has its

principal place of business in the

United States.

2. Remedies Available Under Title III

(a) Section 302(a)(1)(A) provides that,

in addition to attorney’s fees and court

costs, a trafficker will be liable for

money damages to the U.S. national

who owns the claim to property being

trafficked in the greater of the following

amounts:

(i) The amount certified by the

Foreign Claims Settlement Commission

(‘‘FCSC’’) plus interest;

(ii) If the claim has not been certified

by the FCSC, the amount determined by

the court in the course of a Title III

action, plus interest; or

(iii) The fair market value of the

property calculated according to either

the current value of the property or the

value of the property when confiscated

plus interest, whichever is greater.

Interest is to be calculated from the

date of confiscation of the property

involved to the date on which the action

is brought.

(b) Section 302(a)(2) establishes a

presumption that the amount for which

a person is liable to a U.S. national

owning a claim certified by the FCSC is

the amount so certified. This

presumption will be rebuttable by clear

and convincing evidence that one of the

other measures of liability under section

302(a)(1)(A) is appropriate.

(c) Under section 302(a)(3), a person

who trafficks in property which either

serves as the basis for a claim certified

by the FCSC or is the subject of written

notice at least thirty days before the

initiation of an action will be subject to

treble damages. Such person’s liability,

in addition to court costs and reasonable

attorney’s fees, will thus be triple the

amount determined under section

302(a)(1)(A). The notice required under

section 302(a)(3) must be in writing and

be posted by certified mail or personally

delivered. It must contain a statement of

intention to commence a Title III action

or to join the person as a defendant, the

reasons for such action, a demand that

the trafficking cease immediately, and a

copy of this summary.

(d) Under section 302(a)(7), a Title III

action may be settled and a judgment

enforced without obtaining any license

or permission of an agency of the U.S.

Government. This section does not

apply to assets blocked pursuant to

authorities under section 5(b) of the

Trading With the Enemy Act that were

being exercised on July 1, 1977. In

addition, no claim against the Cuban

Government will be considered a

property interest the transfer of which

requires a license or permission of an

agency of the United States.

3. Requirements and Conditions for a

Title III Action

(a) Under section 302(a)(4), if the

property was confiscated before March

12, 1996, the U.S. national bringing the

claim must have owned the claim before

March 12, 1996. If the property was

confiscated on or after March 12, 1996,

a U.S. national who acquires ownership

of a claim to the property after its

confiscation by assignment for value

may not bring a lawsuit under Title III.

(b) Under section 302(a)(5), a U.S.

national who was eligible to file a claim

with the FCSC but did not do so may

not bring an action under this title.

Where the FCSC denied a U.S.

national’s claim that now serves as the

basis for a Title III action, the court

hearing the action will accept the

FCSC’s findings as conclusive. A U.S.

national bringing an action on the basis

of a claim that was not certified by the

FCSC may not file a Title III lawsuit

until March 13, 1998. Any person

bringing an action under Title III whose

claim has not been certified by the FCSC

has the burden of proving to the court

that the interest in the property that is

the subject of the claim is not the

subject of a claim so certified.

(c) Section 302(b) establishes that, in

order for an action to be brought under

Title III, the amount in controversy must

exceed $50,000, not including interest,

costs, and attorneys fees. This amount is

exclusive of the increased liability

damages under section 302(a)(3).

(d) Under section 302(c), title 28 of

the United States Code and the rules of

court generally applicable to actions

brought under section 1331 of title 28

govern the procedure to be followed in

Title III actions. Service of process on an

agency or instrumentality of a foreign

state in the court of a commercial

activity or against individuals acting

under color of law shall be made in

accordance with section 1608 of title 28

of the United States Code.

(e) Under section 302(d), any

judgment entered under Title III shall

not be enforceable against an agency or

instrumentality of either a transition

government in Cuba or a democratically

elected government in Cuba.

(f) Section 302(e) amends section

1611 of title 28 of the United States

Code by adding a new section, which

states that the property of a foreign state

shall be immune from attachment and

from execution in an action brought

under section 302 to the extent that the

property is a facility or installation used

by an accredited diplomatic mission for

official purposes.

(g) Under section 302(f)(1), a U.S.

national who brings an action under

Title III may not bring any other action

seeking monetary or nonmonetary

compensation by reason of the same

subject matter.

(h) Section 302(f)(2)(A) establishes

limits on further recovery by a U.S.

national with a FCSC-certified claim

depending on whether such Title III

action leads to a recovery of a greater,

equal or lesser amount than certified by

the FCSC. If the claimant’s recovery

under Title III is equal to or greater than

the amount certified by the FCSC, the

U.S. national may not recover any

payment on the claim under any claims

settlement agreement between the

United States and Cuba. If the U.S.

national in a Title III action recovers

less than the amount certified by the

FCSC, the U.S. national may only

receive payment in any claims

settlement agreement between the

United States and Cuba to the extent of

the difference between the certified

claim and the recovery. If there is no

recovery, the U.S. national may still

receive payment in a claims settlement

agreement between the United States

and Cuba and will be treated as any

other certified claimant who does not

bring an action under Title III.

(i) Section 302(f)(2)(B) provides that

in the event some or all Title III actions

are consolidated by judicial or other

action so as to create a pool of assets

available to satisfy such claims, FCSCcertified claims will be entitled to

payment in full from such pool before

any payment is made from such pool

with respect to any claim not so

certified.

(j) Under section 302(g), if the United

States and the Government of Cuba

reach a claims settlement agreement

settling FCSC-certified claims, any

amount paid by Cuba in such an

agreement in excess of the payments

made under section 302(f)(2) shall be

deposited in the U.S. Treasury.

(k) Under section 302(h), the rights

created pursuant to Title III may be

suspended upon a presidential

determination under section 203 that a

transition government in Cuba is in

place and may be terminated upon a

presidential determination that a

democratically elected government in

Cuba is in power. Neither of these

actions shall affect suits commenced

before the dates of suspension or

termination. While pending suits may

proceed to judgment, such judgments
Federal Register / Vol. 61, No. 97 / Friday, May 17, 1996 / Notices 24957

1Section 551(8) of the APA defines license as

‘‘the whole or a part of an agency permit, certificate,

approval, registration, charter, membership,

statutory exemption or other form of permission.’’

(emphasis added).

2Licensing is defined as ‘‘agency process

respecting the grant, renewal, denial, revocation,

suspension, annulment, withdrawal, limitation,

amendment, modification, or conditioning of a

license.’’ 5 U.S.C. 551(9).

will not be enforceable against a

transition or democratically elected

government in Cuba under section

302(d).

(l) Claimants bringing an action under

Title III will be required to pay a

uniform filing fee, to be established by

the Judicial Conference of the United

States, pursuant to section 302(i).

(m) Section 302(a)(6) provides that no

court of the United States shall decline,

based upon the act of state doctrine, to

make a determination on the merits in

an action brought under Title III.

(n) Section 305 provides that actions

under section 302 may not be brought

more than two years after the trafficking

giving rise to the action has ceased to

occur.

4. Proof of Ownership of a Claim to

Confiscated Property

(a) Section 303(a) provides that

certification of a claim by the FCSC is

conclusive proof of ownership. In all

other cases, the court has the discretion

to appoint a special master, including

the FCSC, to make determinations of the

amount and ownership of the claim.

Determinations made by administrative

agencies or courts of a foreign

government or international

organization shall not be conclusive

unless made pursuant to binding

international arbitration to which the

United States or the claimant submitted

the claim.

(b) Section 303(b) amends the

International Claims Settlement Act of

1949 by authorizing a U.S. district court

to refer to the FCSC factual questions

under Title III involving the amount and

ownership by a U.S. national of a claim

to confiscated property in Cuba.

5. Consistency With International

Claims Practice

(a) Section 303(c) emphasizes that

nothing in the LIBERTAD Act shall be

construed to require or otherwise

authorize the claims of Cuban nationals

who became U.S. citizens after their

property was confiscated to be included

in a future negotiation and espousal of

U.S. claims with a friendly government

in Cuba when diplomatic relations are

restored. Section 303(c) also states that

the LIBERTAD Act shall not be

construed as superseding, amending, or

otherwise altering certifications that

have been made under the FCSC’s Cuba

Claims Program.

(b) Section 304 amends the

International Claims Settlement Act of

1949 to state that no person other than

a certified claimant shall have a claim

to, participate in, or otherwise have an

interest in the compensation proceeds

paid to a U.S. national by virtue of a

certified claim.

6. Presidential Suspension Authority

(a) Section 306(a) provides that,

subject to the President’s suspension

authority, Title III takes effect on August

1, 1996.

(b) Section 306(b) provides the

President with the authority to suspend

the effective date of Title III beyond

August 1, 1996, for up to six months,

and for additional extensions up to six

months, upon a determination and

report to the appropriate congressional

committees that a suspension is

necessary to the national interests of the

United States and will expedite a

transition to democracy in Cuba. An

initial determination and report must be

submitted to the appropriate

congressional committees at least 15

days before August 1, 1996. Additional

suspensions or extensions are subject to

the same reporting and determination

requirements.

(c) Section 306(c) provides the

President with the authority to suspend

the right to bring an action under Title

III after its effective date for up to six

months, and for additional extensions

up to six months, upon a determination

and report that a suspension is

necessary to the national interests of the

United States and will expedite a

transition to democracy in Cuba.

Section 306(c) also emphasizes that after

the effective date no persons may

acquire a property interest in any

potential or pending Title III action, nor

shall pending actions commenced

before the date of suspension be affected

by a suspension.

(d) Section 306(d) provides that the

President may rescind any suspension

made under section 306(b) or section

306(c) upon reporting to the appropriate

congressional committees that doing so

will expedite a transition to democracy

in Cuba.

Dated: May 11, 1996.

Janet Reno,

Attorney General.

[FR Doc. 96–12407 Filed 5–16–96; 8:45 am]

BILLING CODE 4410–01–M

Drug Enforcement Administration

Manufacturer of Controlled

Substances; Notice of Registration

By notice dated August 14, 1995, and

published in the Federal Register on

August 22, 1995 (60 FR 43613), Ganes

Chemicals, Inc., Industrial Park Road,

Pennsville, New Jersey 08070, made

application to the Drug Enforcement

Administration (DEA) to be registered as

a bulk manufacturer of

methylphenidate.

A registered manufacturer of bulk

methylphenidate filed a comment

alleging that DEA’s notice of

application, published in the Federal

Register, did not comply with notice

and comment rulemaking requirements

of the Administrative Procedure Act

(APA). In addition, the commentor

stated that Ganes’ registration would be

contrary to the public interest under 21

U.S.C. 823(a).

The commentor maintains that DEA

‘‘has deprived [the commentor] and

other registered manufacturers and

applicants of the opportunity to offer

fully-informed comments on Ganes’

application.’’ In support of its position,

the commentor submits that

‘‘registration of bulk manufacturers of

schedule I–II controlled substances is

subject to notice and comment

rulemaking.’’ For the reasons provided

below, this conclusion is an incorrect

interpretation of the APA. First, the

commentor ignores the basic definitions

set forth in the APA and, in so doing,

confuses notice and comment

rulemaking with agency licensing

proceedings. The commentor argues that

DEA proceedings to grant or deny an

application for registration as a bulk

manufacturer are rulemakings.

However, the clear language of the

definition of a ‘‘rule’’ exposes the error

of this analysis. The APA defines ‘‘rule

making’’ to mean an ‘‘agency process for

formulating, amending, or repealing a

rule.’’ 5 U.S.C. 551(5).

The APA defines a ‘‘rule’’ as:

The whole or a part of an agency statement

of general or particular applicability and

future effect designed to implement,

interpret, or prescribe law or policy or

describing the organization, procedure, or

practice requirements of an agency and

includes the approval or prescription for the

future of rates, wages, corporate or financial

structures or reorganizations thereof, prices,

facilities, appliances, services or allowances

therefore or of valuations, costs, or

accounting, or practices bearing on any of the

foregoing.

5 U.S.C. 551(4).

Review of the APA’s definitions of

license 1 and licensing 2 reveals that the

granting or denial of a manufacturer’s

application for registration is a licensing

action, not a rulemaking. Courts have