Why Is USDA’s US$1.5 Million For Cuba A Secret? Hubris?
FOIA Request Or Inspector General?
Part Of A Larger Conflict Between Agriculture, Commerce, State and Transportation
The United States business community has been supportive of efforts by the United States Department of Agriculture (USDA) to increase its focus upon the Republic of Cuba. This support does not, however, exclude the responsibility of the USDA to be transparent, timely, and informative with respect to that focus.
In June 2016, the U.S.-Cuba Trade and Economic Council (USCTEC) asked questions of the USDA relating to a requested budget appropriation. Despite monthly (and sometimes weekly) follow-up, the USDA refused to provide the totality of the information- information which is not, by any measure, considered confidential. The USDA has no statutory basis for withholding the information.
The USDA rejects disclosing budget information that would assist the United States business community with developing a greater appreciation of what the USDA seeks to implement and how that implementation may be of value to the United States business community.
For the United States business community, understanding the statutory and regulatory and policy rationale used by legal counsel within the USDA (and other United States government departments and agencies) is imperative to analyzing and then creating strategies for use with respect to the Republic of Cuba.
Lack of transparency by the USDA (and other United States government departments and agencies) only serves to delay opportunities for United States-based companies.
There continues to be a lack of continuity relating to how The White House (National Security Council), United States Department of Agriculture, United States Department of Commerce, United States Department of State and United States Department of Transportation interpret United States statutes, regulations and policies.
USCTEC Request To USDA
The USDA requested an appropriation of US$1.5 million to provide payments for USDA Foreign Agricultural Service (FAS) staffing within the Embassy of the United States in Havana, Republic of Cuba. The request was approved on 19 May 2016 by the United States Senate Committee on Appropriations; the request requires approval by the United States Senate and United States House of Representatives before becoming law.
USDA Budget Justification for FY2017 (http://www.obpa.usda.gov/33fas2017notes.pdf): d) An increase of $1,500,000 and 5 staff years to open an overseas post in Cuba. In 2014, the President announced a set of diplomatic and economic changes to chart a new course in U.S. relations with Cuba and to further engage and empower the Cuban people. FAS continues its efforts to remove technical barriers between U.S. and Cuban companies and to create more efficient, less burdensome opportunities for Cuba to buy U.S. agricultural products. U.S. agricultural exports to Cuba have grown significantly since trade was authorized in 2000. FAS is currently working on collaborative activities that would eventually allow U.S. representation in Cuba to move beyond the limited technical activities and into trade promotion within any applicable legal limits. For example, redefining the statutory term “cash-in-advance” and allowing U.S. banks to establish corresponding accounts at Cuban banks will improve the speed, efficiency, and oversight of authorized payment between the United States and Cuba. This will expand choices for Cuban shoppers at the grocery stores and help build the customer base for America’s farmers and ranchers. The increase in funds will cover the start-up costs for the first year of operations of the new Cuba post.
1) The USDA plans to place employees in the Republic of Cuba in 2016/2017, if the budget is approved by the United States Congress. What is the statutory language authorizing the USDA to include this budget proposal?
2) The CFR [Code of Federal Regulations], CACR (Cuban Assets Control Regulations], CDA [1992 Cuban Democracy Act], Libertad [1996 Libertad Act], and TSREEA [2000 Trade Sanctions Reform and Export Enhancement Act] apply to the United States Government. What is(are) the provision(s) of law(s) that authorizes the USDA to use budgetary authority/resources to pay for staff, rent, office (if required), expenses, etc., for USDA employees to be stationed in the Republic of Cuba?
3) On 15 July 2016, Secretary Vilsack, during remarks at the National Governors Association (NGA) meeting in Des Moines, Iowa, said that the USDA would have one individual stationed at the United States Embassy in Havana, Republic of Cuba. There is no media release relating to this specific statement. Please provide as soon as possible the details for this announcement including, but not limited to:
- What is the budgetary authority that has been approved for this expenditure?
- How many individuals?
- What is the salary(s) of the individual(s)?
- What is the total expenditure for this effort? Line-item breakdown.
- What will be the title(s) of the individual(s)?
- When will the posting commence?
- The OPM [Office of Personal Management]/OMB [office of Management & Budget] job description(s) for the individual(s).
Note: The USCTEC asked the United States Department of Commerce (DOC) if it would seek a 2016/2017 appropriation to provide payments for U.S. Commercial Service staffing within the Embassy of the United States in Havana, Republic of Cuba. From the DOC Internet site: “The U.S. Commercial Service is the trade promotion arm of the U.S. Department of Commerce’s International Trade Administration [ITA]. U.S. Commercial Service [CS] trade professionals in over 100 U.S. cities and in more than 75 countries help U.S. companies get started in exporting or increase sales to new global markets.” Response from the DOC: “Export promotion is not permitted under the sanctions, which is what ITA/CS does. Many agricultural products are not impacted by the sanctions.”
DOC & USDA Point To § 7207 As Preventing Assistance
State & Transportation See No Issue
The USDA (November 2015) and the DOC reported that their Republic of Cuba-related activities (and by extension the United States Government) were restricted and/or prohibited not be choice (policy), but law (statute), by the Trade Sanctions Reform and Export Enhancement Act (TSREEA) of 2000, title IX, Public Law 106-387 [22 U.S.C. 7207(a)(1)] (TSRA).
§ 7207. Prohibition on United States assistance and financing
(a) Prohibition on United States assistance
(1) In general Notwithstanding any other provision of law, no United States Government assistance, including United States foreign assistance, United States export assistance, and any United States credit or guarantees shall be available for exports to Cuba or for commercial exports to Iran, Libya, North Korea, or Sudan.
(2) Rule of construction
Nothing in paragraph (1) shall be construed to alter, modify, or otherwise affect the provisions of section 6039 of this title or any other provision of law relating to Cuba in effect on the day before October 28, 2000.
The President may waive the application of paragraph (1) with respect to Iran, Libya, North Korea, and Sudan to the degree the President determines that it is in the national security interest of the United States to do so, or for humanitarian reasons.
From The FY 2017 Agriculture Appropriations Bill S. 2956
The Foreign Agricultural Service [FAS] was established March 10, 1953, by Secretary's Memorandum No. 1320, supplement 1. Public Law 83-690, approved August 28, 1954, transferred the agricultural attaches from the Department of State to the Foreign Agricultural Service.
The mission of FAS overseas is to represent U.S. agricultural interests, to promote export of domestic farm products, improve world trade conditions, and report on agricultural production and trade in foreign countries. FAS staff are stationed at 98 offices around the world where they provide expertise in agricultural economics and marketing, as well as provide attaché services.
FAS carries out several export assistance programs to counter the adverse effects of unfair trade practices by competitors on U.S. agricultural trade. The Market Access Program [MAP] conducts both generic and brand-identified promotional programs in conjunction with nonprofit agricultural associations and private firms financed through reimbursable CCC payments.
The General Sales Manager was established pursuant to section 5(f) of the charter of the Commodity Credit Corporation and 15 U.S.C. 714-714p. The funds allocated to the General Sales Manager are used for conducting the following programs: (1) CCC Export Credit Guarantee Program (GSM-102), including facilities financing guarantees; (2) Food for Peace; (3) section 416b Overseas Donations Program; (4) Market Access Program; and (5) programs authorized by the Commodity Credit Corporation Charter Act including barter, export sales of most CCC-owned commodities, export payments, and other programs as assigned to encourage and enhance the export of U.S. agricultural commodities.
The Committee recommends $202,645,000 for the Foreign Agricultural Service, including a direct appropriation of $196,571,000. The Committee recommendation includes $1,500,000, as requested in the budget, to establish an overseas post in Cuba.
From USDA To USCTEC
Regarding the news release of Sec. Vilsack’s announcement at the National Governors Association meeting that USDA would have a presence at U.S. Embassy Havana; a radio announcement from USDA’s Office of Communication from Monday, July 18, 2016: https://audioarchives.oc.usda.gov/node/2003
USDA needs permanent in-country presence to effectively carry out the USDA mission and advance U.S. agricultural and national security interests. On May 19, the Senate Appropriations Committee unanimously approved a fiscal 2017 appropriations bill that includes $1.5 million to support President Obama’s budget request for USDA staffing in Cuba. In the meantime, USDA is working with U.S. Department of State to carry out a series of short-term USDA duty assignments in Cuba. These assignments, while insufficient for meeting all needs associated with the quickly evolving U.S. – Cuba agricultural relationship, will help develop necessary contacts, gain firsthand knowledge of the country’s agricultural challenges and opportunities, and, of critical importance, protect U.S. agriculture from the introduction of new pests and diseases.
Note: In November 2016, staff within a United States Senate office confirmed to the USCTEC that the USDA budget request is for “the equivalent of five (5) staff members for the fiscal year.” That’s US$300,000.00 per staff member….
USDA Media Notification
“With the normalization of relations between the United States and Cuba, USDA requires permanent in-country presence there to effectively carry out the USDA mission and advance U.S. agricultural and national security interests. On May 19, the Senate Appropriations Committee unanimously approved a fiscal 2017 appropriations bill that includes $1.5 million to support President Obama’s budget request for USDA staffing in Cuba.”
“In 2017, FAS will conduct its activities and programs through offices in Washington, D.C. and at 94 overseas locations, including Cuba. The overseas offices represent and advocate for U.S. agricultural interests; provide reporting on agricultural policies, production, and trade for more than170 countries; assist U.S. exporters, trade groups, and State export marketing officials in their trade promotion efforts; and help to implement technical assistance and trade capacity building programs that contribute to increased food security. The Budget provides an appropriated funding level of $197 million for FAS activities in 2017, including increased funding for International Cooperative Administrative Support Services, opening an overseas post in Cuba, and pay costs, including for locally employed staff. Agriculture will play an important role as the U.S. and Cuba expand relations, acting as a bridge that can foster cooperation, understanding, and the exchange of ideas. USDA needs an in-country presence in Cuba to cultivate key relationships, gain firsthand knowledge of the country’s agricultural challenges and opportunities, and develop programs of mutual benefit to both countries.”
USDA Media Notification
HAVANA, March 21, 2016 - As part of President Obama's historic trip to Cuba to further normalization of relations, advance commercial and people-to-people ties, and express our support for human rights for all Cubans, Agriculture Secretary Tom Vilsack today announced several measures that will foster further collaboration between the U.S. and Cuban agriculture sectors. The two neighboring countries share common climate and agriculture related concerns, and the measures announced today in Havana will mutually benefit the Cuban people and U.S. farmers and ranchers.
While in Cuba, Secretary Vilsack announced that USDA will allow the 22 industry-funded Research and Promotion Programs and 18 Marketing Order organizations to conduct authorized research and information exchange activities with Cuba. These groups, which are responsible for creating bonds with consumers and businesses around the world in support of U.S. agriculture, will be able to engage in cooperative research and information exchanges with Cuba about agricultural productivity, food security and sustainable natural resource management. Secretary Vilsack called the announcement "a significant step forward in strengthening our bond and broadening agricultural trade between the United States and Cuba."
During their bilateral meeting today, Secretary Vilsack and Cuban Minster of Agriculture Gustavo Rodriguez Rollero will sign a Memorandum of Understanding that establishes a framework for sharing ideas and research between the two countries. Secretary Vilsack also has invited Minister Rodriguez to join on a visit to one of USDA's Climate Sub Hubs in Puerto Rico in late May, where USDA researchers are studying the effects of climate change in the subtropical region and strategies for mitigating these effects.
"Recognizing the importance of agriculture in the United States and Cuba, USDA is advancing a new partnership for the 21st century between our two countries," said Vilsack. "U.S. producers are eager to help meet Cuba's need for healthy, safe, nutritious food. Research and Promotion and Marketing Order Programs have a long history of conducting important research that supports producers by providing information about a commodity's nutritional benefits and identifying new uses for various commodities. The agreements we reached with our Cuban counterparts on this historic trip, and the ability for our agriculture sector leaders to communicate with Cuban businesses, will help U.S. agricultural interests better understand the Cuban market, while also providing the Cuban people with science-based information as they grow their own agriculture sector."
USDA will review all proposed Research and Promotion Board and Marketing Order activities related to Cuba to ensure that they are consistent with existing laws. Examples of activities that may take place include the following:
Provide nutritional research and guidance, as well as participate with the Cuban government and industry officials, at meetings regarding nutrition and related Cuban rules and regulations.
Conduct plate waste study research in schools to determine what kids eat and what they discard, leading to improved nutritional information that helps develop the guidance for school meal requirements, ensuring kids are getting adequate nutrition to be successful in school.
Provide U.S. based market, consumer, nutrition and environmental research findings to Cuban government and industry officials.
Research commodities' role in a nutritious diet that improves health or lowers the risk of chronic diseases.
Study the efficacy of water disinfectants to eliminate/inactivate bacteria on commodities.
Test recipes and specific products amongst Cuban consumers of all ages, with the goal of increasing product development and acceptance.
Conduct consumer tracking studies to measure attitudes when it comes to a specific commodity and consumption and to identify consumer groups based on their behavior, attitudes, and purchasing habits for a commodity.
The visit to the Puerto Rico Sub Hub would allow USDA and Cuba's Ministry of Agriculture to exchange information on climate change as it relates to tropical forestry and agriculture, and explore opportunities for collaboration. The two officials would be able to explore tools and strategies to cope with challenges associated with climate change, such as drought, heat stress, excessive moisture, longer growing seasons, and changes in pest pressure.
The Puerto Rico hub is part of the USDA Regional Climate Hub network that supports applied research and provides information to farmers, ranchers, advisors, and managers to inform climate-related decision making. The hubs are an invaluable resource for those seeking to understand the specific risks of climate change, as well as region-specific adaptation strategies.
The agriculture and forestry sectors in the Caribbean are especially vulnerable to the effects of climate change. Not only is the region particularly exposed to extreme weather events, but much of its population and prime agricultural lands are located on the coast. The Puerto Rico Sub Hub is specifically focused on addressing these unique challenges and supporting the people and institutions involved in tropical forestry and agriculture.
While most U.S. commercial activities are prohibited, the Trade Sanctions Reform Act (TSRA) of 2000 permits the export of U.S. agricultural commodities, though U.S. agricultural exports to Cuba are limited by U.S. restrictions on government export assistance, cash payments, and extending credit. U.S. agricultural exports have grown significantly since trade was authorized in 2000. In 2014, Cuba imported over $2 billion in agricultural products including $300 million from the United States. However, from 2014 to 2015, U.S. agricultural exports to Cuba fell 48 percent to $148.9 million, the lowest since 2002, giving the United States just a 10 percent market share as Cuba's fourth largest agricultural supplier, behind the EU, Brazil, and Argentina.
This historic visit to Cuba is the first by a sitting U.S. President in nearly 90 years. It is Secretary Vilsack's second visit and is another demonstration of the President's commitment to chart a new course for U.S.-Cuban relations and connect U.S. and Cuban citizens through expanded travel, commerce, and access to information.
USDA Media Notification
Last week, I [The Honorable Thomas Vilsack, United States Secretary of Agriculture] was part of the first USDA team to visit Cuba since U.S. Government offices were closed there in 1961, and I was the third U.S. Cabinet official to visit the island since President Obama announced his intent to resume relations with Cuba late last year. Food and agricultural goods are the dominant U.S. exports to Cuba, and it is my firm belief—and one that appears to be shared by the Cuban people and government officials—that agriculture can serve as a bridge to foster cooperation, understanding and the exchange of ideas.
Several members of Congress from states with strong agriculture economies also made the trip, including Senator Jeff Merkley of Oregon, and U.S. Representatives Terri Sewell of Alabama, Suzan Del Bene of Washington and Kurt Schrader of Oregon. We were able to meet with counterparts in the Cuban government, as well as farmers, farmers market operators, and both urban and rural citizens, just as the USDA team and I do on a regular basis in the United States. We learned from Cuban farmers that they are fighting many of the same pests and diseases that American farmers face, such as citrus greening, and saw that cooperation could lead to faster eradication.
USDA has made a collection of photos from the visit, like the one above, available on Flickr.com/USDAgov. I encourage those interested in Cuba’s food, agriculture, and community to take a glance at all that we saw and accomplished last week.
Expanding markets for American agriculture has been a priority for this Administration, and relationships like the one we are building with Cuba are crucial to continuing the momentum we have seen over the past six years. USDA will continue to work with commodity groups and U.S. businesses interested in exporting to Cuba, building on the common ground that we share in agricultural interests with this neighboring country.
From USCTEC To USDA/DOC & USDA/DOC To USCTEC
The USDA refused for more than one (1) month to provide the names and titles of the USDA employees who accompanied Secretary Vilsack on the November 2015 visit to the Republic of Cuba. The request was adjudicated by the FOIA office at the USDA. The USDA has never responded to the following question:
What was the statutory and/or policy reason(s) that the Secretary was not accompanied by representatives of United States-based companies?
In October 2015, the United States Department of Commerce (DOC) responded to the same question. The Honorable Penny Pritzker, United States Secretary of Commerce, was prohibited from being accompanied by representatives of United States companies during her October 2015 visit to the Republic of Cuba due to provisions of the TSREEA. The DOC also refused for months to provide the names and titles of the DOT employees who accompanies Secretary Pritzker to the Republic of Cuba.
In January 2016, The Honorable Thomas Wheeler, Chairman of the Federal Communications Commission (FCC) visited the Republic of Cuba and members of the official delegation included representatives of United States-based companies and one United States-based subsidiary of a Europe-based company. By its action, the United States Department of State (which led the delegation) rendered the positions of the USDA and the DOC as baseless. However, from the perspective of the USDA and DOC, the United States Department of State was violating United States law.
Chairman Wheeler’s Statement
Last week, I had the privilege of participating in bilateral talks with the Cuban government focused on how we can work with Cuba to increase connectivity between our two countries, as well as within Cuba. We discussed ideas for opening more direct communications links with Cuba, and we got a better sense of Cuba’s Internet and communications connectivity needs. We also met with representatives of the small but growing entrepreneurial community that is hungry for network connectivity.
Ambassador Daniel Sepulveda from the State Department led our delegation which also included representatives from the Department of the Treasury as well as representatives of the technology community. The inclusion of the private sector in the talks advanced the dialog with real life examples of what was possible.
The Cubans we met were proud people who recognize the benefits new telecommunications networks can bring to education, health care and economic growth. Our message was simple: we want to help (already, for instance, two companies have roaming agreements with the state-owned telecom provider). We spoke about a new undersea cable connecting our countries, commercial relations for equipment and service providers, as well as an ongoing regulatory dialog.
We at the FCC have contributed to efforts to improve connectivity between the United States and Cuba, and within Cuba, by removing Cuba from the Commission’s Exclusion List for International Section 214 Authorizations. By removing Cuba from this list, the Commission opened the door for U.S. telecom carriers to provide facilities-based voice and data service to Cuba without separate approval from the Commission. This should lead to increased competition on the U.S.-Cuba route. We are also working on removing certain non-discrimination requirements on the U.S.-Cuba route, which would give U.S. carriers more flexibility to negotiate rates with the state-owned telecommunications operator and to respond to market forces.
Cuba remains one of the least digitally connected countries in our hemisphere. They talk about upgrading to DSL and 3G wireless. We urged them to leapfrog such linear transitions and expand to state-of-the-art services. We pledged our support and the support of U.S. companies to achieve this. It is unclear, however, just how anxious the Cuban government is to open up expanded network capabilities.
I enjoyed my visit to Cuba and came away from it with a newfound understanding of both the opportunities and challenges facing Cuba in terms of communications technology and access. I am grateful to Ambassador Sepulveda for his unstinting leadership, to our Cuban hosts for their warm hospitality, and to our agency and private sector partners for helping to make the trip a success.
United States Department of Transportation (DOT)
In August 2016, The Honorable Anthony Foxx, United States Secretary of Transportation, traveled aboard a [Long Island City, New York-based] JetBlue Airways aircraft on an inaugural flight from Fort Lauderdale, Florida, to Santa Clara, Republic of Cuba. The United States Department of Transportation (DOT) believed that no statutory prohibition existed relating to promoting commercial activities of a United States-based company. Secretary Foxx returned to the United States aboard an aircraft owned by the United States government. The approximate cost to United States taxpayers? Approximately US$70,000.00. Thus, the DOT believed that no statutes prohibited the DOT from using taxpayer funds to promote the activities of United States companies, including the highly visible role of landing in the Republic of Cuba aboard an aircraft owned by a United States-based company. The DOC and USDA would suggest that this activity was unlawful.
“U.S. Transportation Secretary Foxx Arrives in Cuba on First Scheduled Flight in Over 50 Years: DOT Announces Final Selection of U.S. Airlines and Cities for New Service to Havana
HAVANA – As part of the Obama Administration’s historic effort to normalize relations with Cuba, U.S. Transportation Secretary Anthony Foxx today arrived in Cuba on the first scheduled flight to the island in over 50 years, a JetBlue Airways flight from Fort Lauderdale to Santa Clara. In addition, the U.S. Department of Transportation (DOT) today finalized its selection of eight U.S. airlines to begin scheduled flights to Havana as early as this fall.”