II 

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. 

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled, 

3 SECTION 1. SHORT TITLE. 

4 This Act may be cited as the ‘‘Agricultural Export 

5 Facilitation Act of 2005’’. 
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1 SEC. 2. FINDINGS AND PURPOSE. 

2 (a) FINDINGS.—Congress makes the following find3 ings: 

4 (1) The export sector of United States agri5 culture makes an important positive contribution to 

6 this country’s trade balance. 

7 (2) The total value of United States exports of 

8 agricultural products shipped to Cuba since 2000 

9 when such sales were first authorized by Congress is 

10 approximately $1,000,000,000, including transpor11 tation, port fees, and insurance costs. In December 

12 2001, Cuba purchased approximately $4,300,000 in 

13 food and agricultural products. In 2002, Cuba pur14 chased approximately $138,600,000 in food and ag15 ricultural products. In 2003, Cuba purchased ap16 proximately $256,900,000 in food and agricultural 

17 products. In 2004, Cuba purchased approximately 

18 $380,000,000 in food and agricultural products. 

19 Cuba ranked at the bottom of 226 agricultural ex20 port markets for United States companies in 2001; 

21 ranked 50th of 226 in 2002; ranked 35th of 219 in 

22 2003; and ranked approximately 25th of 228 in 

23 2004. Cuba is therefore an important source of rev24 enue for United States agriculture and its affiliated 

25 industries, such as manufacturers and distributors 

26 of value-added food products. 
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1 (3) To be competitive in sales to Cuban pur2 chasers, United States exporters of agricultural 

3 products and their representatives, including rep4 resentatives of United States air or sea carriers, 

5 ports and shippers, must have ready and reliable 

6 physical access to Cuba. Such access is currently un7 certain because, under existing regulations, United 

8 States exporters and their representatives must 

9 apply for and receive special Treasury Department 

10 licenses to travel to Cuba to engage in sales-related 

11 activities. The issuance of such licenses is subject to 

12 both administrative delays and periodic denials. A 

13 blanket statutory authorization for sales and trans14 port-related travel to Cuba by United States export15 ers will remove the current bureaucratic impediment 

16 to agricultural product sales endorsed by Congress 

17 when it passed the Trade Sanctions Reform and Ex18 port Enhancement Act of 2000. 

19 (4) On many occasions United States visas have 

20 been delayed and often denied to prospective Cuban 

21 purchasers of products authorized under the Trade 

22 Sanctions Reform and Export Enhancement Act of 

23 2000. The result has been that family farmers and 

24 other small producers and distributors of agricul25 tural products who lack the resources to fund sales 
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1 delegations to Cuba have been denied access to po2 tential purchasers in that country. A simple solution 

3 is for the Department of State to issue visas to 

4 Cuban nationals who demonstrate an itinerary of 

5 meetings with prospective United States exporters of 

6 products authorized under the Trade Sanctions Re7 form and Export Enhancement Act of 2000. In ad8 dition, visas should be issued to Cuban 

9 phytosanitary inspectors who require entry into the 

10 United States to conduct on-premise inspections of 

11 production and processing facilities and the products 

12 of potential United States exporters. 

13 (5) The Trade Sanctions Reform and Export 

14 Enhancement Act of 2000 requires ‘‘payment of 

15 cash in advance’’ for United States agricultural ex16 ports to Cuba. Some Federal agencies responsible 

17 for the implementation of the Trade Sanctions Re18 form and Export Enhancement Act of 2000 have ex19 pressed the view that ‘‘cash in advance’’ requires 

20 that payment be received by a United States ex21 porter in advance of shipment of goods to Cuba. In22 deed, late last year payments due United States ex23 porters from purchasers in Cuba were frozen in 

24 United States banks while the terms of those pay25 ments were reviewed unnecessarily. This action by 
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1 the Department of the Treasury has created a cli2 mate of commercial uncertainty that has inhibited 

3 agricultural sales under the Trade Sanctions Reform 

4 and Export Enhancement Act of 2000 to Cuba. 

5 (6) There is nothing in either the Trade Sanc6 tions Reform and Export Enhancement Act of 2000 

7 itself or its legislative history to support the view 

8 that Congress intended payment to be made in ad9 vance of the shipment of goods from this country to 

10 Cuba. It was and is the intent of Congress that a 

11 seller of a product authorized under the Trade Sanc12 tions Reform and Export Enhancement Act of 2000 

13 receive payment only before a Cuban purchaser 

14 takes physical possession of that product. 

15 (7) At present it is the policy of the United 

16 States Government to prohibit direct payment be17 tween Cuban and United States financial institu18 tions. As a result, Cuban purchasers of products au19 thorized under the Trade Sanctions Reform and Ex20 port Enhancement Act of 2000 must route their 

21 payments through third country banks that charge 

22 a fee for this service. Allowing direct payments be23 tween Cuban and United States financial institu24 tions will permit the United States exporters to re25 ceive payment directly to their financial institutions 
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1 within hours instead of days and will eliminate an 

2 unnecessary transactional fee, thereby allowing 

3 Cuban purchasers to purchase more United States 

4 origin agricultural products. 

5 (8) Trademarks and trade names are vital as6 sets of the United States companies that export 

7 branded food products, including those who today or 

8 in the future may sell such products to Cuba under 

9 the Trade Sanctions Reform and Export Enhance10 ment Act of 2000. Hundreds of United States com11 panies have registered their trademarks in Cuba in 

12 order to ensure the exclusive right to use those 

13 trademarks when the United States trade embargo 

14 on that country is lifted. Moreover, following the en15 actment of the Trade Sanctions Reform and Export 

16 Enhancement Act of 2000, many United States 

17 companies are today exporting branded food prod18 ucts to Cuba where they hope to establish their 

19 brands with Cuban purchasers in order to benefit 

20 from current sales under the Trade Sanctions Re21 form and Export Enhancement Act of 2000, as well 

22 as position themselves for the larger post-embargo 

23 market for United States goods in Cuba. 

24 (9) Sales to Cuba of branded products of 

25 United States companies contribute to the liveli-
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1 hoods of American workers and the balance sheets 

2 of United States businesses. Those sales depend on 

3 the security of United States trademarks and trade 

4 names protected in Cuba by reciprocal treaties and 

5 agreements for the protection of intellectual prop6 erty. Among such treaties and agreements are the 

7 Agreement on Trade-Related Aspects of Intellectual 

8 Property Rights (TRIPS) and the Inter-American 

9 Convention for Trademark and Commercial Protec10 tion. 

11 (10) The United States District Court for the 

12 Southern District of New York ruled that section 

13 211 of the Department of Commerce and Related 

14 Agencies Appropriations Act, 1999 abrogates, with 

15 respect to Cuba, the Inter-American Convention on 

16 Trademarks and Commercial Protection. The court’s 

17 ruling was affirmed by the United States Court of 

18 Appeals for the Second Circuit. 

19 (11) Cuba’s international remedy under cus20 tomary international law (as codified by Article 60 

21 of the 1969 Vienna Convention on Treaties), for a 

22 breach by the United States of the Inter-American 

23 Convention, is to suspend or revoke the protections 

24 Cuba currently affords United States trademarks 

25 and trade names. 
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1 (12) In order to preserve the rights of United 

2 States nationals holding trademarks in Cuba, includ3 ing those engaged in authorized sales under the 

4 Trade Sanctions Reform and Export Enhancement 

5 Act of 2000 now and in the future, the United 

6 States must repeal section 211 of the Department of 

7 Commerce and Related Agencies Appropriations Act, 

8 1999 and the United States must comply with all 

9 treaty obligations owed Cuba as they relate to trade10 marks and trade names. 

11 (b) PURPOSE.—The purpose of this Act is to remove 

12 impediments to present and future sales of United States 

13 agricultural products to Cuba under the Trade Sanctions 

14 Reform and Export Enhancement Act of 2000 and to oth15 erwise facilitate such sales. 

16 SEC. 3. TRAVEL TO CUBA IN CONNECTION WITH AUTHOR17 IZED SALES ACTIVITIES. 

18 Section 910 of the Trade Sanctions Reform and Ex19 port Enhancement Act of 2000 (22 U.S.C. 7209) is 

20 amended by inserting after subsection (b) the following: 

21 ‘‘(c) GENERAL LICENSE AUTHORITY FOR TRAVEL22 RELATED EXPENDITURE IN CUBA BY PERSONS ENGAG23 ING IN TSREEA OF 2000 SALES AND MARKETING AC24 TIVITIES IN THAT COUNTRY AND TSREEA-RELATED

25 TRANSPORTATION ACTIVITIES.— 
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1 ‘‘(1) IN GENERAL.—The Secretary of the 

2 Treasury shall authorize under a general license the 

3 travel-related transactions listed in subsection (c) of 

4 section 515.560 of title 31, Code of Federal Regula5 tions, for travel to, from, or within Cuba in connec6 tion with activities undertaken in connection with 

7 sales and marketing, including the organization and 

8 participation in product exhibitions, and the trans9 portation by sea or air of products pursuant to this 

10 Act. 

11 ‘‘(2) DEFINITIONS.—In this subsection, the 

12 term ‘sales and marketing activities’ means any ac13 tivity with respect to travel to, from, or within Cuba 

14 that is undertaken by a United States person in 

15 order to explore the market in that country for the 

16 sale of products pursuant to this Act or to engage 

17 in sales activities with respect to such products. The 

18 term ‘sales activities’ includes exhibiting, negoti19 ating, marketing, surveying the market, and deliv20 ering and servicing products pursuant to this Act. 

21 Persons authorized to travel to Cuba under this sec22 tion include full-time employees, executives, sales 

23 agents and consultants of producers, manufacturers, 

24 distributors, shippers, United States air and sea 

25 ports, and carriers of products authorized for sale 
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1 pursuant to this Act, as well as exhibitors and rep2 resentatives and members of national and State 

3 trade organizations that promote the interests of 

4 producers and distributors of such products. 

5 ‘‘(3) REGULATIONS.—The Secretary of the 

6 Treasury shall promulgate such rules and regula7 tions as are necessary to carry out the provisions of 

8 this subsection.’’. 

9 SEC. 4. SENSE OF CONGRESS THAT VISAS SHOULD BE 

10 ISSUED. 

11 (a) SENSE OF CONGRESS.—It is the sense of Con12 gress that the Secretary of State should issue visas for 

13 temporary entry into the United States of Cuban nationals 

14 whose itinerary documents an intent to conduct activities, 

15 including phytosanitary inspections, related to purchasing 

16 United States agricultural goods under the provisions of 

17 the Trade Sanctions Reform and Export Enhancement 

18 Act of 2000. 

19 (b) PERIODIC REPORTS.— 

20 (1) IN GENERAL.—Not later than 45 days after 

21 the date of enactment of this Act and every 3 

22 months thereafter the Secretary of State shall sub23 mit to the Committees on Finance, Agriculture, Nu24 trition, and Forestry, and Foreign Relations of the 

25 Senate and the Committees on Agriculture, Ways 
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1 and Means, and International Relations of the 

2 House of Representatives a report on the issuance of 

3 visas described in subsection (a). 

4 (2) CONTENT OF REPORTS.—Each report shall 

5 contain a full description of each application received 

6 from a Cuban national to travel to the United States 

7 to engage in purchasing activities pursuant to the 

8 Trade Sanctions Reform and Export Enhancement 

9 Act of 2000 and shall describe the disposition of 

10 each such application. 

11 SEC. 5. CLARIFICATION OF PAYMENT TERMS UNDER 

12 TRADE SANCTIONS REFORM AND EXPORT EN13 HANCEMENT ACT OF 2000. 

14 Section 908(b)(1) of the Trade Sanctions Reform and 

15 Export Enhancement Act of 2000 (22 U.S.C. 7207(b)(1)) 

16 is amended by inserting after subparagraph (B) the fol17 lowing: 

18 ‘‘(C) Notwithstanding any other provision 

19 of law, the term ‘payment of cash in advance’ 

20 means the payment by the purchaser of an agri21 cultural commodity or product and the receipt 

22 of such payment by the seller prior to— 

23 ‘‘(i) the transfer of title of such com24 modity or product to the purchaser; and 
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1 ‘‘(ii) the release of control of such 

2 commodity or product to the purchaser.’’. 

3 SEC. 6. AUTHORIZATION OF DIRECT TRANSFERS BETWEEN 

4 CUBAN AND UNITED STATES FINANCIAL IN5 STITUTIONS. 

6 Notwithstanding any other provisions of law, the 

7 President may not restrict direct transfers from a Cuban 

8 financial institution to a United States financial institu9 tion executed in payment for a product authorized for sale 

10 under the Trade Sanctions Reform and Export Enhance11 ment Act of 2000. 

12 SEC. 7. ADHERENCE TO INTERNATIONAL AGREEMENTS 

13 FOR THE MUTUAL PROTECTION OF INTEL14 LECTUAL PROPERTY, INCLUDING REPEAL OF 

15 SECTION 211. 

16 (a) REPEAL OF PROHIBITION ON ENFORCEMENT OF

17 RIGHTS TO CERTAIN UNITED STATES INTELLECTUAL

18 PROPERTIES AND TRANSFER OF SUCH PROPERTIES.— 

19 (1) REPEAL.—Section 211 of the Department 

20 of Commerce and Related Agencies Appropriations 

21 Act, 1999 (section 101(b) of division A of Public 

22 Law 105–277; 112 Stat. 2681–2688) is repealed. 

23 (2) REGULATIONS.—The Secretary of the 

24 Treasury shall promulgate such regulations as are 

25 necessary to carry out the repeal made by paragraph 
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1 (1), including removing any prohibition on trans2 actions or payments to which subsection (a)(1) of 

3 section 211 of the Department of Commerce and 

4 Related Agencies Appropriations Act, 1999 applied. 

5 (3) FURTHER REGULATIONS.—The Secretary of 

6 the Treasury shall amend the Cuban Asset Control 

7 regulations (part 515 of title 31, Code of Federal 

8 Regulations) to authorize under general license the 

9 transfer or receipt of any trademark or trade name 

10 subject to United States law in which a designated 

11 national has an interest. The filing and prosecution 

12 of opposition and infringement proceedings related 

13 to any trademark or trade name in which a des14 ignated national has an interest and the prosecution 

15 of any defense to such proceedings shall also be au16 thorized by general license. 

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