1.
This Act may be cited as the
Agricultural Export Facilitation Act
of 2005
.
2.
(a)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)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.
3.Travel to Cuba
in connection with authorized sales activitiesSection 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)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)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)The
Secretary of the Treasury shall promulgate such rules and regulations as are
necessary to carry out the provisions of this subsection.
.
4.Sense of
congress that visas should be issued
(a)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)
(1)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)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.
5.Clarification of
payment terms under Trade Sanctions Reform and Export Enhancement Act of
2000Section 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.
.
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.
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)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)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)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.