Amendments to the Burmese Freedom and Democracy Act of 2003

(a)

Prohibition on importation of jadeite and rubies from burma and articles of jewelry containing jadeite or rubies from burma

The Burmese Freedom and Democracy Act of 2003 (Public Law 108–61; 50 U.S.C. 1701 note) is amended by inserting after section 3 the following new section:

3A.

Prohibition on importation of jadeite and rubies from Burma and articles of jewelry containing jadeite or rubies from Burma

(a)

Definitions

In this section: (1)

Appropriate congressional committees

The term appropriate congressional committees means— (A)the Committee on Ways and Means and the Committee on Foreign Affairs of the House of Representatives; and (B)the Committee on Finance and the Committee on Foreign Relations of the Senate. (2)

Burmese covered article

The term Burmese covered article means— (A)jadeite mined or extracted from Burma; (B)rubies mined or extracted from Burma; or (C)articles of jewelry containing jadeite described in subparagraph (A) or rubies described in subparagraph (B). (3)

Non-burmese covered article

The term non-Burmese covered article means— (A)jadeite mined or extracted from a country other than Burma; (B)rubies mined or extracted from a country other than Burma; or (C)articles of jewelry containing jadeite described in subparagraph (A) or rubies described in subparagraph (B). (4)

Jadeite; rubies; articles of jewelry containing jadeite or rubies

(A)

Jadeite

The term jadeite means any jadeite classifiable under heading 7103 of the Harmonized Tariff Schedule of the United States (in this paragraph referred to as the HTS). (B)

Rubies

The term rubies means any rubies classifiable under heading 7103 of the HTS. (C)

Articles of jewelry containing jadeite or rubies

The term articles of jewelry containing jadeite or rubies means— (i)any article of jewelry classifiable under heading 7113 of the HTS that contains jadeite or rubies; or (ii)any article of jadeite or rubies classifiable under heading 7116 of the HTS. (5)

United States

The term United States, when used in the geographic sense, means the several States, the District of Columbia, and any commonwealth, territory, or possession of the United States. (b)

Prohibition on importation of Burmese covered articles

(1)

In general

Notwithstanding any other provision of law, until such time as the President determines and certifies to the appropriate congressional committees that Burma has met the conditions described in section 3(a)(3), beginning 60 days after the date of the enactment of the Block Burmese JADE (Junta’s Anti-Democratic Efforts) Act of 2007, the President shall prohibit the importation into the United States of any Burmese covered article. (2)

Regulatory authority

The President is authorized to, and shall as necessary, issue such proclamations, regulations, licenses, and orders, and conduct such investigations, as may be necessary to implement the prohibition under paragraph (1). (3)

Other actions

Beginning on the date of the enactment of this Act, the President shall take all appropriate actions to seek the following: (A)The issuance of a draft waiver decision by the Council for Trade in Goods of the World Trade Organization granting a waiver of the applicable obligations of the United States under the World Trade Organization with respect to the provisions of this section and any measures taken to implement this section. (B)The adoption of a resolution by the United Nations General Assembly expressing the need to address trade in Burmese covered articles and calling for the creation and implementation of a workable certification scheme for non-Burmese covered articles to prevent the trade in Burmese covered articles. (c)

Requirements for importation of non-Burmese covered articles

(1)

In general

Except as provided in paragraph (2), until such time as the President determines and certifies to the appropriate congressional committees that Burma has met the conditions described in section 3(a)(3), beginning 60 days after the date of the enactment of the Block Burmese JADE (Junta’s Anti-Democratic Efforts) Act of 2007, the President shall require as a condition for the importation into the United States of any non-Burmese covered article that— (A)the exporter of the non-Burmese covered article has implemented measures that have substantially the same effect and achieve the same goals as the measures described in clauses (i) through (iv) of paragraph (2)(B) (or their functional equivalent) to prevent the trade in Burmese covered articles; and (B)the importer of the non-Burmese covered article agrees— (i)to maintain a full record of, in the form of reports or otherwise, complete information relating to any act or transaction related to the purchase, manufacture, or shipment of the non-Burmese covered article for a period of not less than 5 years from the date of entry of the non-Burmese covered article; and (ii)to provide the information described in clause (i) to the relevant United States authorities upon request. (2)

Exception

(A)

In general

The President may waive the requirements of paragraph (1) with respect to the importation of non-Burmese covered articles from any country with respect to which the President determines and certifies to the appropriate congressional committees has implemented the measures described in subparagraph (B) (or their functional equivalent) to prevent the trade in Burmese covered articles. (B)

Measures described

The measures referred to in subparagraph (A) are the following: (i)With respect to exportation from the country of jadeite or rubies in rough form, a system of verifiable controls on the jadeite or rubies from mine to exportation demonstrating that the jadeite or rubies were not mined or extracted from Burma, and accompanied by officially-validated documentation certifying the country from which the jadeite or rubies were mined or extracted, total carat weight, and value of the jadeite or rubies. (ii)With respect to exportation from the country of finished jadeite or polished rubies, a system of verifiable controls on the jadeite or rubies from mine to the place of final finishing of the jadeite or rubies demonstrating that the jadeite or rubies were not mined or extracted from Burma, and accompanied by officially-validated documentation certifying the country from which the jadeite or rubies were mined or extracted. (iii)With respect to exportation from the country of articles of jewelry containing jadeite or rubies, a system of verifiable controls on the jadeite or rubies from mine to the place of final finishing of the article of jewelry containing jadeite or rubies demonstrating that the jadeite or rubies were not mined or extracted from Burma, and accompanied by officially-validated documentation certifying the country from which the jadeite or rubies were mined or extracted. (iv)With respect to re-exportation from the country of jadeite or rubies in rough form, finished jadeite or polished rubies, or articles of jewelry containing jadeite or rubies, a system of verifiable controls on the jadeite or rubies or articles of jewelry containing jadeite or rubies ensuring that no jadeite or rubies mined or extracted from Burma have entered the legitimate trade in jadeite or rubies. (v)Verifiable recordkeeping by all entities and individuals engaged in mining, importation, and exportation of non-Burmese covered articles in the country, and subject to inspection and verification by authorized authorities of the government of the country in accordance with applicable law. (vi)Implementation by the government of the country of proportionate and dissuasive penalties against any persons who violate laws and regulations designed to prevent trade in Burmese covered articles. (vii)Full cooperation by the country with the United Nations or other official international organizations that seek to prevent trade in Burmese covered articles. (d)

Inapplicability

(1)

In general

The requirements of subsection (b)(1) and subsection (c)(1) shall not apply with respect to the importation of Burmese covered articles and non-Burmese covered articles, respectively, that were previously exported from the United States and reimported into the United States by the same person, without having been advanced in value or improved in condition by any process or other means while outside the United States, if the person declares that the reimportation of the Burmese covered articles or non-Burmese covered articles, as the case may be, satisfies the requirements of this paragraph. (2)

Additional provision

The requirements of subsection (c)(1) shall not apply with respect to the importation of non-Burmese covered articles that are imported by or on behalf of an individual for personal use and accompanying an individual upon entry into the United States. (e)

Enforcement

Burmese covered articles or non-Burmese covered articles that are imported into the United States in violation of any prohibition of this Act or any other provision law shall be subject to all applicable seizure and forfeiture laws and criminal and civil laws of the United States to the same extent as any other violation of the customs laws of the United States. (f)

Sense of Congress

(1)

In general

It is the sense of Congress that the President should take the necessary steps to seek to negotiate an international arrangement—similar to the Kimberley Process Certification Scheme for conflict diamonds—to prevent the trade in Burmese covered articles. Such an international arrangement should create an effective global system of controls and should contain the measures described in subsection (c)(2)(B) (or their functional equivalent). (2)

Kimberley process certification scheme defined

In paragraph (1), the term Kimberley Process Certification Scheme has the meaning given the term in section 3(6) of the Clean Diamond Trade Act (Public Law 108–19; 19 U.S.C. 3902(6)). (g)

Report

(1)

In general

Not later than 180 days after the date of the enactment of the Block Burmese JADE (Junta’s Anti-Democratic Efforts) Act of 2007, the President shall transmit to the appropriate congressional committees a report describing what actions the United States has taken during the 60-day period beginning on the date of the enactment of such Act to seek— (A)the issuance of a draft waiver decision by the Council for Trade in Goods of the World Trade Organization, as specified in subsection (b)(3)(A); (B)the adoption of a resolution by the United Nations General Assembly, as specified in subsection (b)(3)(B); and (C)the negotiation of an international arrangement, as specified in subsection (f)(1). (2)

Update

Not later than 180 days after the transmission of the report required under paragraph (1), and every 6 months thereafter, the President shall transmit to the appropriate congressional committees an update of the report describing the continued efforts of the United States to seek the items specified in subparagraphs (A), (B), and (C) of paragraph (1). (h)

GAO report

Not later than 14 months after the date of the enactment of the Block Burmese JADE (Junta’s Anti-Democratic Efforts) Act of 2007, the Comptroller General of the United States shall submit to the appropriate congressional committees a report on the effectiveness of the implementation of this section. The Comptroller General shall include in the report any recommendations or any modifications to this Act that may be necessary.

(b)

Visa ban

Paragraph (1) of section 6(a) of the Burmese Freedom and Democracy Act of 2003 is amended to read as follows:

(1)

Visa ban

(A)

In general

The Secretary of State shall deny the issuance of a visa and the Secretary of Homeland Security shall deny admission to the United States to a sanctioned person (as such term is defined in section 4(b)(8). (B)

Waiver

The ban described in subparagraph (A) may be waived only if the President determines and certifies in writing to Congress that such is in the national interests of the United States.

(c)

Freezing assets of the Burmese regime in the United States

Section 4 of the Burmese Freedom and Democracy Act of 2003 is amended— (1)by redesignating subsections (b) and (c) as subsection (c) and (d); and (2)by inserting after subsection (a) the following new subsection:

(b)

Blocking of assets and other prohibited activities

(1)

In general

The President shall block all property and interests in property, including all commercial, industrial, or public utility undertakings or entities, that, on or after the date of the enactment of the Block Burmese JADE (Junta’s Anti-Democratic Efforts) Act of 2007— (A)are owned, in whole or in part, by any sanctioned person; and (B)are in the United States, or in the possession or control of the Government of the United States or of any financial institution or financial agency organized under the laws of a State, territory, or possession of the United States, including any branch or office of such financial institution or financial agency that is located outside the United States. (2)

Prohibited activities

Any person who, on or after the date of the enactment of the Block Burmese JADE (Junta’s Anti-Democratic Efforts) Act of 2007, engages in any of the following activities shall be subject to penalties described in paragraph (6): (A)Payments or transfers of any property, or any transactions involving the transfer of anything of economic value by any United States person, including any financial institution or financial agency organized under the laws of a State, territory, or possession of the United States and any branch or office of such financial institution or financial agency that is located outside the United States, to any sanctioned person. (B)Direct or indirect payments of any tax, cancellation penalty, or any other amount to the Burmese Government, including amounts paid or incurred with respect to any joint production agreement relating to the Yadana or Shwe gas fields or pipelines. Any such payment made by or on behalf of a United States person after the date of the enactment of the Block Burmese JADE (Junta’s Anti-Democratic Efforts) Act of 2007 shall be deemed a willful violation of this Act for purposes of penalties described in paragraph (6) and any other related provision of law. (C)The export or reexport to any entity owned, controlled, or operated by a sanctioned person directly or indirectly, of any goods, technology, or services by a United States person. (D)The performance by any United States person of any contract, including a contract providing a loan or other financing, in support of an industrial, commercial, or public utility operated, controlled, or owned by a sanctioned person. (3)

Extension of authority

(A)

Blocking of property

The President may block all property and interests in property of the following entities and persons, to the same extent as property and interests in property of a foreign person determined to have committed acts of terrorism for purposes of Executive Order No. 13224 of September 21, 2001, (50 U.S.C. 1701 note) may be blocked: (i)The Burmese Government, the Burmese military, or a sanctioned person, including entities owned or effectively controlled by the Burmese Government, the Burmese military, or a sanctioned person. (ii)Persons otherwise associated with the Burmese Government, the Burmese military, or a sanctioned person. (B)

Conditions on certain accounts

The President may prohibit or impose conditions on the opening or maintaining in the United States of a correspondent account or payable-through account by any financial institution or financial agency that is organized under the laws of a State, territory, or possession of the United States, if the President determines that such an account might be used— (i)by a person or entity that holds property or an interest in property belonging to the Burmese Government, the Burmese military, or a sanctioned person; or (ii)to conduct a transaction on behalf of or for the benefit of the Burmese Government, the Burmese military, or a sanctioned person. (4)

Rule of construction

Nothing in this subsection shall be construed to prohibit any contract or other financial transaction with any nongovernmental humanitarian organization in Burma. (5)

Exceptions

The prohibitions and restrictions described in paragraphs (1), (2), and (3) shall not apply to medicine, medical equipment or supplies, food, or any other form of humanitarian assistance provided to Burma as relief in response to a humanitarian crisis. (6)

Penalties

Any person who violates any prohibition or restriction described in paragraph (1), (2), or (3) shall be subject to the penalties under section 6 of the International Emergency Economic Powers Act (50 U.S.C. 1705) to the same extent as for a violation under that Act. (7)

Listing of sanctioned persons

The Secretary of State and Secretary of the Treasury shall update and publish in the Federal Register new lists of sanctioned persons as additional information becomes available. The Secretary of State and the Secretary of the Treasury shall devote sufficient resources to the identification of information concerning sanctioned persons to carry out the purposes described in this Act. (8)

Definitions

In this subsection: (A)

Correspondent account; payable-through account

The terms correspondent account and payable-through account have the meanings given such terms in section 5318A(e)(1) of title 31, United States Code. (B)

Financial agency

The term financial agency has the meaning given such term in section 5312 of title 31, United States Code. (C)

Financial institution

The term financial institution has the meaning given such term in section 5312 of title 31, United States Code. (D)

United States person

The term United States person means— (i)any United States citizen or alien lawfully admitted for permanent residence to the United States; (ii)any person in the United States; (iii)any entity organized under the laws of the United States, any State or territory thereof, or the District of Columbia, and any foreign branch or subsidiary of such an entity; or (iv)any entity organized under the laws of the United States, any State or territory thereof, or the District of Columbia, in which an individual or entity described in clauses (i), (ii), or (iii) owns, directly or indirectly, more than 50 percent of the outstanding capital stock or other beneficial interest in such entity. (E)

Sanctioned person

The term sanctioned person means— (i)any individual who is a member of the former or present leadership of the SPDC or the union Solidarity Development Association; (ii)any member of the Burmese military involved in the violent repression of the public protests in Burma in August, September, and October 2007 (regardless of when such repression occurred); (iii)any Burmese official who has engaged in, ordered, or facilitated acts of gross violations of internationally recognized human rights (as defined in section 502B(d)(1) of the Foreign Assistance Act of 1961 (22 U.S.C. 2304(d)(1)), either as an individual or as a member of a group or government; or (iv)any member of the immediate family of any individual described in clauses (i), (ii), or (iii).