I 111th CONGRESS 1st Session H. R. 1737 IN THE HOUSE OF REPRESENTATIVES March 26, 2009 Mr. Moran of Kansas (for himself, Mr. Delahunt, Ms. Edwards of Maryland, Mrs. Emerson, Mr. Berry, Mr. Davis of Tennessee, Mr. Boustany, Mr. Paul, Mr. Conaway, Mr. Ross, Mr. Flake, Mr. Thompson of Mississippi, Mr. McGovern, Mr. Snyder, Mr. Brown of South Carolina, Mr. Boozman, Mr. Neugebauer, and Mr. Walz) introduced the following bill; which was referred to the Committee on Foreign Affairs, and in addition to the Committees on the Judiciary, Financial Services, and Agriculture, for a period to be subsequently determined by the Speaker, in each case for consideration of such provisions as fall within the jurisdiction of the committee concerned 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.

1.

Short title

This Act may be cited as the Agricultural Export Facilitation Act of 2009.

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)According to the United States Department of Agriculture, Foreign Agricultural Service, 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 $2,511,600,000, excluding transportation, port fees, and insurance costs beyond the port of exportation. During the 2001, 2002, 2003, 2004, 2005, 2006, 2007, and 2008 calendar years Cuba purchased from United States exporters approximately $4,600,000; $139,800,000; $247,600,000; $383,900,000; $346,000,000; $320,800,000; $431,200,000; and $691,103,000 in food and agricultural products, respectively. 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 Department of the Treasury 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 visas to enter the United States 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 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, in late 2004 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 to Cuba under the Trade Sanctions Reform and Export Enhancement Act of 2000. (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 the United States 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. (b)

Purpose

The purpose of this Act is to restate the intent of Congress with respect to the Trade Sanctions Reform and Export Enhancement Act of 2000, to remove impediments to present and future sales of United States agricultural products to Cuba under such Act, and to otherwise facilitate such sales.

3.

Travel to Cuba in connection with authorized sales activities under the Trade Sanctions Reform and Export Enhancement Act of 2000

Section 910 of the Trade Sanctions Reform and Export Enhancement Act of 2000 (22 U.S.C. 7209) is amended by striking subsection (a) and inserting the following: (a)

Authorization of travel relating to commercial sale of agricultural commodities, medicine, and medical devices

(1)

In general

The Secretary of the Treasury shall promulgate regulations under which, at a minimum, the travel-related transactions described in paragraph (2) may be authorized by specific license or general license for travel to, from, or within Cuba in connection with— (A)commercial export sales and transportation of agricultural commodities, medicine, and medical devices pursuant to this Act; and (B)sales and marketing activities of agricultural commodities, medicine, and medical devices pursuant to this Act. (2)

Authorized travel-related transactions

The travel-related transactions referred to in paragraph (1) are the following: (A)All transportation-related transactions ordinarily incident to travel to and from Cuba. (B)All transactions ordinarily incident to travel anywhere within Cuba. (C)The importation of Cuba-origin information and information materials. (D)Remittances to nationals of Cuba who are members of the remitter’s immediate family. (E)All transactions incident to the processing and payment of checks, drafts, travelers’ checks, and similar instruments negotiated in Cuba by any person authorized pursuant to this Act to engage in financial transactions in Cuba. (3)

Sales and marketing activities defined

(A)

In general

In paragraph (1), the term sales and marketing activities— (i)means any activity that is undertaken by a United States person in order to explore the market in Cuba for the sale of agricultural commodities, medicine, and medical devices pursuant to this Act; and (ii)includes exhibiting, negotiating, marketing, surveying the market, and delivering and servicing agricultural commodities, medicine, and medical devices pursuant to this Act. (B)

United states person defined

In subparagraph (A), the term United States person— (i)means the Federal Government, any State or local government, or any private person or entity of the United States; and (ii)includes a full-time employee, executive, sales agent or consultant of a producer, manufacturer, distributor, shipper, United States air or seaport, or a carrier of agricultural commodities, medicine, and medical devices authorized for sale pursuant to this Act, as well as an exhibitor, representative, or member of a national or State trade organization that promotes the interests of a producer, manufacturer, or distributor of such products. .

4.

Issuance of visas to conduct activities in accordance with the Trade Sanctions Reform and Export Enhancement Act of 2000

(a)

Issuance of visas

Notwithstanding any other provision of law, in the case of a Cuban national 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, a consular officer (as defined in section 101(a)(9) of the Immigration and Nationality Act (8 U.S.C. 1101(a)(9))) may issue a nonimmigrant visa under section 101(a)(15)(B) of such Act (8 U.S.C. 1101(a)(15)(B)) to the national, if the national is not inadmissible to the United States under section 212 of such Act (8 U.S.C. 1182). (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 Foreign Affairs 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.

5.

Clarification of payment terms under the Trade Sanctions Reform and Export Enhancement Act of 2000

Section 908(b)(4) of the Trade Sanctions Reform and Export Enhancement Act of 2000 (22 U.S.C. 7207(b)(4)) is amended— (1)in subparagraph (B), by striking and at the end; (2)in subparagraph (C), by striking the period at the end and inserting ; and; and (3)by adding at the end the following: (D)the term payment of cash in advance means, notwithstanding any other provision of law, 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 under the Trade Sanctions Reform and Export Enhancement Act of 2000

Notwithstanding any other provision 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 (22 U.S.C. 7201 et seq.).