[Full text in Original]
CHAPTER 69A—CUBAN LIBERTY AND DEMOCRATIC SOLIDARITY (LIBERTAD)
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SUBCHAPTER I—STRENGTHENING INTERNATIONAL SANCTIONS AGAINST THE CASTRO GOVERNMENT
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§6032. Enforcement of economic embargo of Cuba
(a) Policy
(1) Restrictions by other countries
The Congress hereby reaffirms section 1704(a) of the Cuban Democracy Act of 1992 [22 U.S.C. 6003(a)], which states that the President should encourage foreign countries to restrict trade and credit relations with Cuba in a manner consistent with the purposes of that Act [22 U.S.C. 6001 et seq.].
(2) Sanctions on other countries
The Congress further urges the President to take immediate steps to apply the sanctions described in section 1704(b)(1) of that Act [22 U.S.C. 6003(b)(1)] against countries assisting Cuba.
(b) Diplomatic efforts
The Secretary of State should ensure that United States diplomatic personnel abroad understand and, in their contacts with foreign officials, are communicating the reasons for the United States economic embargo of Cuba, and are urging foreign governments to cooperate more effectively with the embargo.
(c) Existing regulations
The President shall instruct the Secretary of the Treasury and the Attorney General to enforce fully the Cuban Assets Control Regulations set forth in part 515 of title 31, Code of Federal Regulations.
(d) Omitted
(e) Denial of visas to certain Cuban nationals
It is the sense of the Congress that the President should instruct the Secretary of State and the Attorney General to enforce fully existing regulations to deny visas to Cuban nationals considered by the Secretary of State to be officers or employees of the Cuban Government or of the Communist Party of Cuba.
(f), (g) Omitted
(h) Codification of economic embargo
The economic embargo of Cuba, as in effect on March 1, 1996, including all restrictions under part 515 of title 31, Code of Federal Regulations, shall be in effect on March 12, 1996, and shall remain in effect, subject to section 6064 of this title.
(Pub. L. 104–114, title I, §102, Mar. 12, 1996, 110 Stat. 792.)
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§6033 PROHIBITION AGAINST INDIRECT FINANCING OF CUBA.
(a) Prohibition.--Notwithstanding any other provision of law, no loan, credit, or other financing may be
extended knowingly by a United States national, a permanent resident alien, or a United States agency to
any person for the purpose of financing transactions involving any confiscated property the claim to
which is owned by a United States national as of the date of the enactment of this Act, except for
financing by the United States national owning such claim for a transaction permitted under United States
law.
(b) Suspension and Termination of Prohibition.--
(1) Suspension.--The President is authorized to suspend the prohibition contained in subsection (a) upon
a determination made under section 203(c)(1) that a transition government in Cuba is in power.
(2) Termination.--The prohibition contained in subsection (a) shall cease to apply on the date on which
the economic embargo of Cuba terminates as provided in section 204.
(c) Penalties.--Violations of subsection (a) shall be punishable by such civil penalties as are applicable to
violations of the Cuban Assets Control Regulations set forth in part 515 of title 31, Code of Federal
Regulations.
(d) Definitions.--As used in this section--
(1) the term "permanent resident alien" means an alien lawfully admitted for permanent residence into the
United States; and
(2) the term "United States agency" has the meaning given the term "agency" in section 551(1) of title 5,
United States Code.
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§6040. Importation safeguard against certain Cuban products
(a) Prohibition on import of and dealings in Cuban products
The Congress notes that section 515.204 of title 31, Code of Federal Regulations, prohibits the entry of, and dealings outside the United States in, merchandise that—
(1) is of Cuban origin;
(2) is or has been located in or transported from or through Cuba; or
(3) is made or derived in whole or in part of any article which is the growth, produce, or manufacture of Cuba.
(b) Effect of NAFTA
The Congress notes that United States accession to the North American Free Trade Agreement does not modify or alter the United States sanctions against Cuba. The statement of administrative action accompanying that trade agreement specifically states the following:
(1) "The NAFTA rules of origin will not in any way diminish the Cuban sanctions program.... Nothing in the NAFTA would operate to override this prohibition.".
(2) "Article 309(3) [of the NAFTA] permits the United States to ensure that Cuban products or goods made from Cuban materials are not imported into the United States from Mexico or Canada and that United States products are not exported to Cuba through those countries.".
(c) Restriction of sugar imports
The Congress notes that section 902(c) of the Food Security Act of 1985 (Public Law 99–198) requires the President not to allocate any of the sugar import quota to a country that is a net importer of sugar unless appropriate officials of that country verify to the President that the country does not import for reexport to the United States any sugar produced in Cuba.
(d) Assurances regarding sugar products
Protection of essential security interests of the United States requires assurances that sugar products that are entered, or withdrawn from warehouse for consumption, into the customs territory of the United States are not products of Cuba.
(Pub. L. 104–114, title I, §110, Mar. 12, 1996, 110 Stat. 800.)
SUBCHAPTER III—PROTECTION OF PROPERTY RIGHTS OF UNITED STATES NATIONALS
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§6082. Liability for trafficking in confiscated property claimed by United States nationals
(a) Civil remedy
(1) Liability for trafficking
(A) Except as otherwise provided in this section, any person that, after the end of the 3-month period beginning on the effective date of this subchapter, traffics in property which was confiscated by the Cuban Government on or after January 1, 1959, shall be liable to any United States national who owns the claim to such property for money damages in an amount equal to the sum of—
(i) the amount which is the greater of—
(I) the amount, if any, certified to the claimant by the Foreign Claims Settlement Commission under the International Claims Settlement Act of 1949 [22 U.S.C. 1621 et seq.], plus interest;
(II) the amount determined under section 6083(a)(2) of this title, plus interest; or
(III) the fair market value of that property, calculated as being either the current value of the property, or the value of the property when confiscated plus interest, whichever is greater; and
(ii) court costs and reasonable attorneys' fees.
(B) Interest under subparagraph (A)(i) shall be at the rate set forth in section 1961 of title 28, computed by the court from the date of confiscation of the property involved to the date on which the action is brought under this subsection.
(2) Presumption in favor of the certified claims
There shall be a presumption that the amount for which a person is liable under clause (i) of paragraph (1)(A) is the amount that is certified as described in subclause (I) of that clause. The presumption shall be rebuttable by clear and convincing evidence that the amount described in subclause (II) or (III) of that clause is the appropriate amount of liability under that clause.
(3) Increased liability
(A) Any person that traffics in confiscated property for which liability is incurred under paragraph (1) shall, if a United States national owns a claim with respect to that property which was certified by the Foreign Claims Settlement Commission under title V of the International Claims Settlement Act of 1949 [22 U.S.C. 1643 et seq.], be liable for damages computed in accordance with subparagraph (C).
(B) If the claimant in an action under this subsection (other than a United States national to whom subparagraph (A) applies) provides, after the end of the 3-month period described in paragraph (1) notice to—
(i) a person against whom the action is to be initiated, or
(ii) a person who is to be joined as a defendant in the action, at least 30 days before initiating the action or joining such person as a defendant, as the case may be, and that person, after the end of the 30-day period beginning on the date the notice is provided, traffics in the confiscated property that is the subject of the action, then that person shall be liable to that claimant for damages computed in accordance with subparagraph (C).
(C) Damages for which a person is liable under subparagraph (A) or subparagraph (B) are money damages in an amount equal to the sum of—
(i) the amount determined under paragraph (1)(A)(ii), and
(ii) 3 times the amount determined applicable under paragraph (1)(A)(i).
(D) Notice to a person under subparagraph (B)—
(i) shall be in writing;
(ii) shall be posted by certified mail or personally delivered to the person; and
(iii) shall contain—
(I) a statement of intention to commence the action under this section or to join the person as a defendant (as the case may be), together with the reasons therefor;
(II) a demand that the unlawful trafficking in the claimant's property cease immediately; and
(III) a copy of the summary statement published under paragraph (8).
(4) Applicability
(A) Except as otherwise provided in this paragraph, actions may be brought under paragraph (1) with respect to property confiscated before, on, or after March 12, 1996.
(B) In the case of property confiscated before March 12, 1996, a United States national may not bring an action under this section on a claim to the confiscated property unless such national acquires ownership of the claim before March 12, 1996.
(C) In the case of property confiscated on or after March 12, 1996, a United States national who, after the property is confiscated, acquires ownership of a claim to the property by assignment for value, may not bring an action on the claim under this section.
(5) Treatment of certain actions
(A) In the case of a United States national who was eligible to file a claim with the Foreign Claims Settlement Commission under title V of the International Claims Settlement Act of 1949 [22 U.S.C. 1643 et seq.] but did not so file the claim, that United States national may not bring an action on that claim under this section.
(B) In the case of any action brought under this section by a United States national whose underlying claim in the action was timely filed with the Foreign Claims Settlement Commission under title V of the International Claims Settlement Act of 1949 but was denied by the Commission, the court shall accept the findings of the Commission on the claim as conclusive in the action under this section.
(C) A United States national, other than a United States national bringing an action under this section on a claim certified under title V of the International Claims Settlement Act of 1949, may not bring an action on a claim under this section before the end of the 2-year period beginning on March 12, 1996.
(D) An interest in property for which a United States national has a claim certified under title V of the International Claims Settlement Act of 1949 may not be the subject of a claim in an action under this section by any other person. Any person bringing an action under this section whose claim has not been so certified shall have the burden of establishing for the court that the interest in property that is the subject of the claim is not the subject of a claim so certified.
(6) Inapplicability of act of state doctrine
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 paragraph (1).
(7) Licenses not required
(A) Notwithstanding any other provision of law, an action under this section may be brought and may be settled, and a judgment rendered in such action may be enforced, without obtaining any license or other permission from any agency of the United States, except that this paragraph shall not apply to the execution of a judgment against, or the settlement of actions involving, property blocked under the authorities of section 4305(b) of title 50, that were being exercised on July 1, 1977, as a result of a national emergency declared by the President before such date, and are being exercised on March 12, 1996.
(B) Notwithstanding any other provision of law, and for purposes of this subchapter only, any claim against the Cuban Government shall not be deemed to be an interest in property the transfer of which to a United States national required before March 12, 1996, or requires after March 12, 1996, a license issued by, or the permission of, any agency of the United States.
(8) Publication by Attorney General
Not later than 60 days after March 12, 1996, the Attorney General shall prepare and publish in the Federal Register a concise summary of the provisions of this subchapter, including a statement of the liability under this subchapter of a person trafficking in confiscated property, and the remedies available to United States nationals under this subchapter.
(b) Amount in controversy
An action may be brought under this section by a United States national only where the amount in controversy exceeds the sum or value of $50,000, exclusive of interest, costs, and attorneys' fees. In calculating $50,000 for purposes of the preceding sentence, the applicable amount under subclause (I), (II), or (III) of subsection (a)(1)(A)(i) may not be tripled as provided in subsection (a)(3).
(c) Procedural requirements
(1) In general
Except as provided in this subchapter, the provisions of title 28 and the rules of the courts of the United States apply to actions under this section to the same extent as such provisions and rules apply to any other action brought under section 1331 of title 28.
(2) Service of process
In an action under this section, service of process on an agency or instrumentality of a foreign state in the conduct of a commercial activity, or against individuals acting under color of law, shall be made in accordance with section 1608 of title 28.
(d) Enforceability of judgments against Cuban Government
In an action brought under this section, any judgment against an agency or instrumentality of the Cuban Government shall not be enforceable against an agency or instrumentality of either a transition government in Cuba or a democratically elected government in Cuba.
(e) Omitted
(f) Election of remedies
(1) Election
Subject to paragraph (2)—
(A) any United States national that brings an action under this section may not bring any other civil action or proceeding under the common law, Federal law, or the law of any of the several States, the District of Columbia, or any commonwealth, territory, or possession of the United States, that seeks monetary or nonmonetary compensation by reason of the same subject matter; and
(B) any person who brings, under the common law or any provision of law other than this section, a civil action or proceeding for monetary or nonmonetary compensation arising out of a claim for which an action would otherwise be cognizable under this section may not bring an action under this section on that claim.
(2) Treatment of certified claimants
(A) In the case of any United States national that brings an action under this section based on a claim certified under title V of the International Claims Settlement Act of 1949 [22 U.S.C. 1643 et seq.]—
(i) if the recovery in the action is equal to or greater than the amount of the certified claim, the United States national may not receive payment on the claim under any agreement entered into between the United States and Cuba settling claims covered by such title, and such national shall be deemed to have discharged the United States from any further responsibility to represent the United States national with respect to that claim;
(ii) if the recovery in the action is less than the amount of the certified claim, the United States national may receive payment under a claims agreement described in clause (i) but only to the extent of the difference between the amount of the recovery and the amount of the certified claim; and
(iii) if there is no recovery in the action, the United States national may receive payment on the certified claim under a claims agreement described in clause (i) to the same extent as any certified claimant who does not bring an action under this section.
(B) In the event some or all actions brought under this section are consolidated by judicial or other action in such manner as to create a pool of assets available to satisfy the claims in such actions, including a pool of assets in a proceeding in bankruptcy, every claimant whose claim in an action so consolidated was certified by the Foreign Claims Settlement Commission under title V of the International Claims Settlement Act of 1949 [22 U.S.C. 1643 et seq.] shall be entitled to payment in full of its claim from the assets in such pool before any payment is made from the assets in such pool with respect to any claim not so certified.
(g) Deposit of excess payments by Cuba under claims agreement
Any amounts paid by Cuba under any agreement entered into between the United States and Cuba settling certified claims under title V of the International Claims Settlement Act of 1949 [22 U.S.C. 1643 et seq.] that are in excess of the payments made on such certified claims after the application of subsection (f) shall be deposited into the United States Treasury.
(h) Termination of rights
(1) In general
All rights created under this section to bring an action for money damages with respect to property confiscated by the Cuban Government—
(A) may be suspended under section 6064(a) of this title; and
(B) shall cease upon transmittal to the Congress of a determination of the President under section 6063(c)(3) of this title that a democratically elected government in Cuba is in power.
(2) Pending suits
The suspension or termination of rights under paragraph (1) shall not affect suits commenced before the date of such suspension or termination (as the case may be), and in all such suits, proceedings shall be had, appeals taken, and judgments rendered in the same manner and with the same effect as if the suspension or termination had not occurred.
(i) Imposition of filing fees
The Judicial Conference of the United States shall establish a uniform fee that shall be imposed upon the plaintiff or plaintiffs in each action brought under this section. The fee should be established at a level sufficient to recover the costs to the courts of actions brought under this section. The fee under this subsection is in addition to any other fees imposed under title 28.
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§6085. Effective date
(a) In general
Subject to subsections (b) and (c), this subchapter and the amendments made by this subchapter shall take effect on August 1, 1996.
(b) Suspension authority
(1) Suspension authority
The President may suspend the effective date under subsection (a) for a period of not more than 6 months if the President determines and reports in writing to the appropriate congressional committees at least 15 days before such effective date that the suspension is necessary to the national interests of the United States and will expedite a transition to democracy in Cuba.
(2) Additional suspensions
The President may suspend the effective date under subsection (a) for additional periods of not more than 6 months each, each of which shall begin on the day after the last day of the period during which a suspension is in effect under this subsection, if the President determines and reports in writing to the appropriate congressional committees at least 15 days before the date on which the additional suspension is to begin that the suspension is necessary to the national interests of the United States and will expedite a transition to democracy in Cuba.
(c) Other authorities
(1) Suspension
After this subchapter and the amendments of this subchapter have taken effect—
(A) no person shall acquire a property interest in any potential or pending action under this subchapter; and
(B) the President may suspend the right to bring an action under this subchapter with respect to confiscated property for a period of not more than 6 months if the President determines and reports in writing to the appropriate congressional committees at least 15 days before the suspension takes effect that such suspension is necessary to the national interests of the United States and will expedite a transition to democracy in Cuba.
(2) Additional suspensions
The President may suspend the right to bring an action under this subchapter for additional periods of not more than 6 months each, each of which shall begin on the day after the last day of the period during which a suspension is in effect under this subsection, if the President determines and reports in writing to the appropriate congressional committees at least 15 days before the date on which the additional suspension is to begin that the suspension is necessary to the national interests of the United States and will expedite a transition to democracy in Cuba.
(3) Pending suits
The suspensions of actions under paragraph (1) shall not affect suits commenced before the date of such suspension, and in all such suits, proceedings shall be had, appeals taken, and judgments rendered in the same manner and with the same effect as if the suspension had not occurred.
(d) Rescission of suspension
The President may rescind any suspension made under subsection (b) or (c) upon reporting to the appropriate congressional committees that doing so will expedite a transition to democracy in Cuba.
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Delegation of Authority To Suspend the Provisions of Title III of the Cuban Liberty and Democratic Solidarity (LIBERTAD) Act of 1996
Memorandum of President of the United States, Jan. 31, 2013, 78 F.R. 9573, provided:
Memorandum for the Secretary of State
By the authority vested in me as President by the Constitution and the laws of the United States of America, including section 301 of title 3 of the United States Code, I hereby delegate to you the authority to suspend the provisions of title III of the Cuban Liberty and Democratic Solidarity (LIBERTAD) Act of 1996 (Public Law 104–114; 22 U.S.C. 6021–6091), as authorized by section 306(c)(2) of the Act.
You are authorized and directed to publish this memorandum in the Federal Register.
Barack Obama.
SUBCHAPTER IV—EXCLUSION OF CERTAIN ALIENS
§6091. Exclusion from United States of aliens who have confiscated property of United States nationals or who traffic in such property
(a) Grounds for exclusion
The Secretary of State shall deny a visa to, and the Attorney General shall exclude from the United States, any alien who the Secretary of State determines is a person who, after March 12, 1996—
(1) has confiscated, or has directed or overseen the confiscation of, property a claim to which is owned by a United States national, or converts or has converted for personal gain confiscated property, a claim to which is owned by a United States national;
(2) traffics in confiscated property, a claim to which is owned by a United States national;
(3) is a corporate officer, principal, or shareholder with a controlling interest of an entity which has been involved in the confiscation of property or trafficking in confiscated property, a claim to which is owned by a United States national; or
(4) is a spouse, minor child, or agent of a person excludable under paragraph (1), (2), or (3).
(b) Definitions
As used in this section, the following terms have the following meanings:
(1) Confiscated; confiscation
The terms "confiscated" and "confiscation" refer to—
(A) the nationalization, expropriation, or other seizure by the Cuban Government of ownership or control of property—
(i) without the property having been returned or adequate and effective compensation provided; or
(ii) without the claim to the property having been settled pursuant to an international claims settlement agreement or other mutually accepted settlement procedure; and
(B) the repudiation by the Cuban Government of, the default by the Cuban Government on, or the failure of the Cuban Government to pay—
(i) a debt of any enterprise which has been nationalized, expropriated, or otherwise taken by the Cuban Government;
(ii) a debt which is a charge on property nationalized, expropriated, or otherwise taken by the Cuban Government; or
(iii) a debt which was incurred by the Cuban Government in satisfaction or settlement of a confiscated property claim.
(2) Traffics
(A) Except as provided in subparagraph (B), a person "traffics" in confiscated property if that person knowingly and intentionally—
(i)(I) transfers, distributes, dispenses, brokers, or otherwise disposes of confiscated property,
(II) purchases, receives, obtains control of, or otherwise acquires confiscated property, or
(III) improves (other than for routine maintenance), invests in (by contribution of funds or anything of value, other than for routine maintenance), or begins after March 12, 1996, to manage, lease, possess, use, or hold an interest in confiscated property,
(ii) enters into a commercial arrangement using or otherwise benefiting from confiscated property, or
(iii) causes, directs, participates in, or profits from, trafficking (as described in clause (i) or (ii)) by another person, or otherwise engages in trafficking (as described in clause (i) or (ii)) through another person, without the authorization of any United States national who holds a claim to the property.
(B) The term "traffics" 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 of Cuba and a resident of Cuba, and who is not an official of the Cuban Government or the ruling political party in Cuba.
(c) Exemption
This section shall not apply where the Secretary of State finds, on a case by case basis, that the entry into the United States of the person who would otherwise be excluded under this section is necessary for medical reasons or for purposes of litigation of an action under subchapter III.
(d) Effective date
(1) In general
This section applies to aliens seeking to enter the United States on or after March 12, 1996.
(2) Trafficking
This section applies only with respect to acts within the meaning of "traffics" that occur on or after March 12, 1996.
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OFAC cites the following statutory authorities as the basis for the CACR, initially issued in 1963 pursuant to TWEA.
*Trade Sanctions Reform and Export Enhancement Act of 2000 (TSRA), 22 U.S.C. §§ 7201-7211
*Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), 18 U.S.C. § 2332d
*Cuban Liberty and Democratic Solidarity (Libertad) Act of 1996, 22 U.S.C. §§ 6021-6091
*Cuban Democracy Act of 1992 (CDA), 22 U.S.C. §§ 6001-6010
*Sections 5 and 16 of the Trading With the Enemy Act (TWEA), 50 U.S.C. App. §§ 5, 16
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The Cuban Liberty and Democratic Solidarity (Libertad) Act of 1996, also referred to as the "Helms-Burton" Act," impacts the current constitution of the CACR in the following ways:
1) The "[c]odification of [the] economic embargo" provision appears to have been interpreted by OFAC such that none of the 200-level prohibitions can be altered, but that, apart from that, the "codification" provision places no inherent limit on what may be generally licensed. Hence the extreme imbalance between the seeming restrictiveness of the 200-level prohibitions of the CACR in comparison to the permissions of the 500-level general licenses.
2) The Libertad Act mandates the current 515.208 of the CACR (Restrictions on loans, credits and other financing), and explains why the CACR is written such that no licenses relax the restrictions of that provision.
3) For comments on the practical considerations related to the enforcement of the so-called "secondary sanctions" provisions of the statute, see Note on Enforcement of Titles III and IV of the Helms-Burton Act (or "LIBERTAD Act") (System Ed. Note).