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[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>
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