[Congressional Bills 109th Congress]
[From the U.S. Government Publishing Office]
[S. 328 Introduced in Senate (IS)]
109th CONGRESS
1st Session
S. 328
To facilitate the sale of United States agricultural products to Cuba,
as authorized by the Trade Sanctions Reform and Export Enhancement Act
of 2000.
_______________________________________________________________________
IN THE SENATE OF THE UNITED STATES
February 9, 2005
Mr. Craig (for himself, Mr. Baucus, Mr. Roberts, Mr. Lugar, Mr. Hagel,
Mr. Talent, Mr. Enzi, Mr. Chafee, Mr. Crapo, Mr. Thune, Mrs. Hutchison,
Mrs. Murray, Mr. Bingaman, Mrs. Lincoln, Mr. Dorgan, Mr. Nelson of
Nebraska, Mr. Johnson, Mr. Pryor, Ms. Landrieu, and Mr. Harkin)
introduced the following bill; which was read twice and referred to the
Committee on Foreign Relations
_______________________________________________________________________
A BILL
To facilitate the sale of United States agricultural products to Cuba,
as authorized by the Trade Sanctions Reform and Export Enhancement Act
of 2000.
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Agricultural Export Facilitation Act
of 2005''.
SEC. 2. FINDINGS AND PURPOSE.
(a) Findings.--Congress makes the following findings:
(1) The export sector of United States agriculture makes an
important positive contribution to this country's trade
balance.
(2) The total value of United States exports of
agricultural products shipped to Cuba since 2000 when such
sales were first authorized by Congress is approximately
$1,000,000,000, including transportation, port fees, and
insurance costs. In December 2001, Cuba purchased approximately
$4,300,000 in food and agricultural products. In 2002, Cuba
purchased approximately $138,600,000 in food and agricultural
products. In 2003, Cuba purchased approximately $256,900,000 in
food and agricultural products. In 2004, Cuba purchased
approximately $380,000,000 in food and agricultural products.
Cuba ranked at the bottom of 226 agricultural export markets
for United States companies in 2001; ranked 50th of 226 in
2002; ranked 35th of 219 in 2003; and ranked approximately 25th
of 228 in 2004. Cuba is therefore an important source of
revenue for United States agriculture and its affiliated
industries, such as manufacturers and distributors of value-
added food products.
(3) To be competitive in sales to Cuban purchasers, United
States exporters of agricultural products and their
representatives, including representatives of United States air
or sea carriers, ports and shippers, must have ready and
reliable physical access to Cuba. Such access is currently
uncertain because, under existing regulations, United States
exporters and their representatives must apply for and receive
special Treasury Department licenses to travel to Cuba to
engage in sales-related activities. The issuance of such
licenses is subject to both administrative delays and periodic
denials. A blanket statutory authorization for sales and
transport-related travel to Cuba by United States exporters
will remove the current bureaucratic impediment to agricultural
product sales endorsed by Congress when it passed the Trade
Sanctions Reform and Export Enhancement Act of 2000.
(4) On many occasions United States visas have been delayed
and often denied to prospective Cuban purchasers of products
authorized under the Trade Sanctions Reform and Export
Enhancement Act of 2000. The result has been that family
farmers and other small producers and distributors of
agricultural products who lack the resources to fund sales
delegations to Cuba have been denied access to potential
purchasers in that country. A simple solution is for the
Department of State to issue visas to Cuban nationals who
demonstrate an itinerary of meetings with prospective United
States exporters of products authorized under the Trade
Sanctions Reform and Export Enhancement Act of 2000. In
addition, visas should be issued to Cuban phytosanitary
inspectors who require entry into the United States to conduct
on-premise inspections of production and processing facilities
and the products of potential United States exporters.
(5) The Trade Sanctions Reform and Export Enhancement Act
of 2000 requires ``payment of cash in advance'' for United
States agricultural exports to Cuba. Some Federal agencies
responsible for the implementation of the Trade Sanctions
Reform and Export Enhancement Act of 2000 have expressed the
view that ``cash in advance'' requires that payment be received
by a United States exporter in advance of shipment of goods to
Cuba. Indeed, late last year payments due United States
exporters from purchasers in Cuba were frozen in United States
banks while the terms of those payments were reviewed
unnecessarily. This action by the Department of the Treasury
has created a climate of commercial uncertainty that has
inhibited agricultural sales under the Trade Sanctions Reform
and Export Enhancement Act of 2000 to Cuba.
(6) There is nothing in either the Trade Sanctions Reform
and Export Enhancement Act of 2000 itself or its legislative
history to support the view that Congress intended payment to
be made in advance of the shipment of goods from this country
to Cuba. It was and is the intent of Congress that a seller of
a product authorized under the Trade Sanctions Reform and
Export Enhancement Act of 2000 receive payment only before a
Cuban purchaser takes physical possession of that product.
(7) At present it is the policy of the United States
Government to prohibit direct payment between Cuban and United
States financial institutions. As a result, Cuban purchasers of
products authorized under the Trade Sanctions Reform and Export
Enhancement Act of 2000 must route their payments through third
country banks that charge a fee for this service. Allowing
direct payments between Cuban and United States financial
institutions will permit the United States exporters to receive
payment directly to their financial institutions within hours
instead of days and will eliminate an unnecessary transactional
fee, thereby allowing Cuban purchasers to purchase more United
States origin agricultural products.
(8) Trademarks and trade names are vital assets of the
United States companies that export branded food products,
including those who today or in the future may sell such
products to Cuba under the Trade Sanctions Reform and Export
Enhancement Act of 2000. Hundreds of United States companies
have registered their trademarks in Cuba in order to ensure the
exclusive right to use those trademarks when the United States
trade embargo on that country is lifted. Moreover, following
the enactment of the Trade Sanctions Reform and Export
Enhancement Act of 2000, many United States companies are today
exporting branded food products to Cuba where they hope to
establish their brands with Cuban purchasers in order to
benefit from current sales under the Trade Sanctions Reform and
Export Enhancement Act of 2000, as well as position themselves
for the larger post-embargo market for United States goods in
Cuba.
(9) Sales to Cuba of branded products of United States
companies contribute to the livelihoods of American workers and
the balance sheets of United States businesses. Those sales
depend on the security of United States trademarks and trade
names protected in Cuba by reciprocal treaties and agreements
for the protection of intellectual property. Among such
treaties and agreements are the Agreement on Trade-Related
Aspects of Intellectual Property Rights (TRIPS) and the Inter-
American Convention for Trademark and Commercial Protection.
(10) The United States District Court for the Southern
District of New York ruled that section 211 of the Department
of Commerce and Related Agencies Appropriations Act, 1999
abrogates, with respect to Cuba, the Inter-American Convention
on Trademarks and Commercial Protection. The court's ruling was
affirmed by the United States Court of Appeals for the Second
Circuit.
(11) Cuba's international remedy under customary
international law (as codified by Article 60 of the 1969 Vienna
Convention on Treaties), for a breach by the United States of
the Inter-American Convention, is to suspend or revoke the
protections Cuba currently affords United States trademarks and
trade names.
(12) In order to preserve the rights of United States
nationals holding trademarks in Cuba, including those engaged
in authorized sales under the Trade Sanctions Reform and Export
Enhancement Act of 2000 now and in the future, the United
States must repeal section 211 of the Department of Commerce
and Related Agencies Appropriations Act, 1999 and the United
States must comply with all treaty obligations owed Cuba as
they relate to trademarks and trade names.
(b) Purpose.--The purpose of this Act is to remove impediments to
present and future sales of United States agricultural products to Cuba
under the Trade Sanctions Reform and Export Enhancement Act of 2000 and
to otherwise facilitate such sales.
SEC. 3. TRAVEL TO CUBA IN CONNECTION WITH AUTHORIZED SALES ACTIVITIES.
Section 910 of the Trade Sanctions Reform and Export Enhancement
Act of 2000 (22 U.S.C. 7209) is amended by inserting after subsection
(b) the following:
``(c) General License Authority for Travel-Related Expenditure in
Cuba by Persons Engaging in TSREEA of 2000 Sales and Marketing
Activities in That Country and TSREEA-Related Transportation
Activities.--
``(1) In general.--The Secretary of the Treasury shall
authorize under a general license the travel-related
transactions listed in subsection (c) of section 515.560 of
title 31, Code of Federal Regulations, for travel to, from, or
within Cuba in connection with activities undertaken in
connection with sales and marketing, including the organization
and participation in product exhibitions, and the
transportation by sea or air of products pursuant to this Act.
``(2) Definitions.--In this subsection, the term `sales and
marketing activities' means any activity with respect to travel
to, from, or within Cuba that is undertaken by a United States
person in order to explore the market in that country for the
sale of products pursuant to this Act or to engage in sales
activities with respect to such products. The term `sales
activities' includes exhibiting, negotiating, marketing,
surveying the market, and delivering and servicing products
pursuant to this Act. Persons authorized to travel to Cuba
under this section include full-time employees, executives,
sales agents and consultants of producers, manufacturers,
distributors, shippers, United States air and sea ports, and
carriers of products authorized for sale pursuant to this Act,
as well as exhibitors and representatives and members of
national and State trade organizations that promote the
interests of producers and distributors of such products.
``(3) Regulations.--The Secretary of the Treasury shall
promulgate such rules and regulations as are necessary to carry
out the provisions of this subsection.''.
SEC. 4. SENSE OF CONGRESS THAT VISAS SHOULD BE ISSUED.
(a) Sense of Congress.--It is the sense of Congress that the
Secretary of State should issue visas for temporary entry into the
United States of Cuban nationals whose itinerary documents an intent to
conduct activities, including phytosanitary inspections, related to
purchasing United States agricultural goods under the provisions of the
Trade Sanctions Reform and Export Enhancement Act of 2000.
(b) Periodic Reports.--
(1) In general.--Not later than 45 days after the date of
enactment of this Act and every 3 months thereafter the
Secretary of State shall submit to the Committees on Finance,
Agriculture, Nutrition, and Forestry, and Foreign Relations of
the Senate and the Committees on Agriculture, Ways and Means,
and International Relations of the House of Representatives a
report on the issuance of visas described in subsection (a).
(2) Content of reports.--Each report shall contain a full
description of each application received from a Cuban national
to travel to the United States to engage in purchasing
activities pursuant to the Trade Sanctions Reform and Export
Enhancement Act of 2000 and shall describe the disposition of
each such application.
SEC. 5. CLARIFICATION OF PAYMENT TERMS UNDER TRADE SANCTIONS REFORM AND
EXPORT ENHANCEMENT ACT OF 2000.
Section 908(b)(1) of the Trade Sanctions Reform and Export
Enhancement Act of 2000 (22 U.S.C. 7207(b)(1)) is amended by inserting
after subparagraph (B) the following:
``(C) Notwithstanding any other provision of law,
the term `payment of cash in advance' means the payment
by the purchaser of an agricultural commodity or
product and the receipt of such payment by the seller
prior to--
``(i) the transfer of title of such
commodity or product to the purchaser; and
``(ii) the release of control of such
commodity or product to the purchaser.''.
SEC. 6. AUTHORIZATION OF DIRECT TRANSFERS BETWEEN CUBAN AND UNITED
STATES FINANCIAL INSTITUTIONS.
Notwithstanding any other provisions of law, the President may not
restrict direct transfers from a Cuban financial institution to a
United States financial institution executed in payment for a product
authorized for sale under the Trade Sanctions Reform and Export
Enhancement Act of 2000.
SEC. 7. ADHERENCE TO INTERNATIONAL AGREEMENTS FOR THE MUTUAL PROTECTION
OF INTELLECTUAL PROPERTY, INCLUDING REPEAL OF SECTION
211.
(a) Repeal of Prohibition on Enforcement of Rights to Certain
United States Intellectual Properties and Transfer of Such
Properties.--
(1) Repeal.--Section 211 of the Department of Commerce and
Related Agencies Appropriations Act, 1999 (section 101(b) of
division A of Public Law 105-277; 112 Stat. 2681-2688) is
repealed.
(2) Regulations.--The Secretary of the Treasury shall
promulgate such regulations as are necessary to carry out the
repeal made by paragraph (1), including removing any
prohibition on transactions or payments to which subsection
(a)(1) of section 211 of the Department of Commerce and Related
Agencies Appropriations Act, 1999 applied.
(3) Further regulations.--The Secretary of the Treasury
shall amend the Cuban Asset Control regulations (part 515 of
title 31, Code of Federal Regulations) to authorize under
general license the transfer or receipt of any trademark or
trade name subject to United States law in which a designated
national has an interest. The filing and prosecution of
opposition and infringement proceedings related to any
trademark or trade name in which a designated national has an
interest and the prosecution of any defense to such proceedings
shall also be authorized by general license.
<all>