To facilitate the sale of United States agricultural products to Cuba, as authorized by the Trade Sanctions Reform and Export Enhancement Act of 2000.

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

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.

END