S.Amdt. 2329

SA 2329. Mr. CARDIN (for himself, Mr. McCain, Mr. Durbin, and Mr.

[[Page S3243]]

Merkley) submitted an amendment intended to be proposed by him to the
bill H.R. 5515, to authorize appropriations for fiscal year 2019 for
military activities of the Department of Defense, for military
construction, and for defense activities of the Department of Energy,
to prescribe military personnel strengths for such fiscal year, and for
other purposes; which was ordered to lie on the table; as follows:

At the end of title XII, add the following:

Subtitle H--Matters Relating to Burma

SEC. 1281. LIMITATION ON SECURITY ASSISTANCE AND SECURITY
COOPERATION.

(a) Limitation on Military and Security Sector
Cooperation.--Except as provided in subsection (b), during
the 8-year period beginning on the date of the enactment of
this Act, the United States may not provide any security
assistance or engage in any security cooperation with the
military or security forces of Burma until the date on which
the Secretary of State certifies to the appropriate
congressional committees with respect to security assistance,
as such term is defined in section 502B(d) of the Foreign
Assistance Act of 1961 (22 U.S.C. 2304(d)), and, in
consultation with the Secretary of Defense, with respect to
security cooperation programs and activities of the
Department of Defense, as such term is defined in section 301
of title 10, United States Code, that the military and
security forces of Burma have demonstrated significant
progress in abiding by international human rights standards
and are undertaking meaningful and significant security
sector reform, including reforms that enhance transparency
and accountability, to prevent future abuses, such as the
following:
(1) The Burmese military and security forces adhere to
international humanitarian law, demonstrate significant
progress in abiding by international standards for human
rights, and pledge to stop future human rights abuses.
(2) The Burmese military and security forces support
efforts to carry out meaningful and comprehensive
investigations of alleged abuses and are taking steps to hold
accountable those members of such military and security
forces responsible for human rights abuses.
(3) The Government of Burma, including the military and
security forces, allow immediate and unfettered humanitarian
access to communities in areas affected by conflict,
including Rohingya communities in the State of Rakhine.
(4) The Government of Burma, including the military and
security forces, cooperates with the United Nations High
Commissioner for Refugees and organizations affiliated with
the United Nations to ensure the protection of displaced
persons and the safe, voluntary, and dignified return of
refugees and internally displaced persons.
(5) The Burmese military and security forces cease their
attacks against ethnic minority groups and constructively
participate in the conclusion of a credible, nationwide
ceasefire agreement, political accommodation, and
constitutional change, including the restoration of the
citizenship of the Rohingya.
(6) The Government of Burma, including the military and
security forces, defines a transparent plan with a timeline
for professionalizing the military and security forces and
includes a process by which the military withdraws from
private-sector business enterprises and ceases involvement in
the illegal trade in natural resources and narcotics.
(7) The Government of Burma establishes effective civilian
control over the finances of its military and security
forces, including by ensuring that the military does not have
access to off-budget income and that military expenditures
are subject to adequate civilian oversight.
(b) Exceptions.--
(1) Certain existing authorities.--The Secretary of Defense
shall retain the authority to conduct consultations with
Burma pursuant to the authorization under section 1253 of the
Carl Levin and Howard P. ``Buck'' McKeon National Defense
Authorization Act for Fiscal Year 2015 (22 U.S.C. 2151 note).
(2) Hospitality.--The Secretary of State and the United
States Agency for International Development may provide
assistance authorized under part I of the Foreign Assistance
Act of 1961 (22 U.S.C. 2151 et seq.) to provide hospitality
during research, dialogues, meetings, or other activities by
the parties attending the Union Peace Conference 21st Century
Panglong or related processes seeking inclusive, sustainable
reconciliation.
(c) Military Reform.--The certification required under
subsection (a) shall include a written justification in
unclassified form that may contain a classified annex
describing the efforts of the Burmese military to implement
reforms, end impunity for human rights abuses, and increase
transparency and accountability.
(d) Report.--
(1) In general.--Not later than 180 days after the date of
the enactment of this Act, and annually thereafter, the
Secretary of Defense and the Secretary of State shall submit
to the appropriate congressional committees a report, in
unclassified form with a classified annex, on the strategy
and plans for military-to-military engagement between the
United States Armed Forces and the military and security
forces of Burma.
(2) Elements.--The report required under paragraph (1)
shall include the following elements:
(A) A description and assessment of the strategy of the
Government of Burma for security sector reform, including
plans to withdraw the military from owning or controlling
private-sector business entities and end involvement in the
illicit trade in jade and other natural resources, reforms to
end corruption and illicit drug trafficking, and
constitutional reforms to ensure civilian control.
(B) A list of ongoing military activities conducted by the
United States Government with the Government of Burma, and a
description of the United States strategy for future
military-to-military engagements between the United States
and Burma's military and security forces, including the
military of Burma, the Burma Police Force, and armed ethnic
groups.
(C) An assessment of the progress of the military and
security forces of Burma towards developing a framework to
implement human right reforms, including--
(i) cooperation with civilian authorities to investigate
and prosecute cases of serious, credible, or gross human
rights abuses;
(ii) steps taken to demonstrate respect for and
implementation of the laws of war; and
(iii) a description of the elements of the military-to-
military engagement between the United States and Burma that
promote such implementation.
(D) An assessment of progress on the peaceful settlement of
armed conflicts between the Government of Burma and ethnic
minority groups, including actions taken by the military of
Burma to adhere to cease-fire agreements, allow for safe and
voluntary returns of displaced persons to their homes, and
withdraw forces from conflict zones.
(E) An assessment of the recruitment and use, by the
Burmese military, of children as soldiers.
(F) An assessment of the use, by the Burmese military, of
violence against women, sexual violence, or other gender-
based violence as a tool of terror, war, or ethnic cleansing.
(e) Regular Consultations.--Any new program or activity
carried out under this section shall be subject to prior
consultation with the appropriate congressional committees.

SEC. 1282. IMPOSITION OF SANCTIONS WITH RESPECT TO CERTAIN
FOREIGN PERSONS.

(a) In General.--For the 8-year period beginning on the
date that is 270 days after the date of the enactment of this
Act, the President shall impose the sanctions described in
subsection (b) with respect to each foreign person that the
President determines--
(1) is a current or former senior official of the military
or security forces of Burma who knowingly--
(A) perpetrated or is responsible for ordering or otherwise
directing serious human rights abuses in Burma; or
(B) has taken significant steps to impede investigations or
prosecutions of serious human rights abuses allegedly
committed by one or more subordinates of such official,
including against the Rohingya community in the state of
Rakhine;
(2) is an entity owned or controlled by any person
described in paragraph (1);
(3) has knowingly provided or received significant
financial, material, or technological support to or from a
foreign person, including the immediate family members of
such person, described in paragraph (1) for any of the acts
described in subparagraph (A) or (B) of such paragraph.
(b) Sanctions.--The sanctions described in this section are
the following:
(1) Asset blocking.--Notwithstanding the requirements of
section 202 of the International Emergency Economic Powers
Act (50 U.S.C. 1701), the exercise of all powers granted to
the President by such Act to the extent necessary to block
and prohibit all transactions in all property and interests
in property of a person the President determines meets one or
more of the criteria described in subsection (a) if such
property and interests in property are in the United States,
come within the United States, or are or come within the
possession or control of a United States person.
(2) Aliens ineligible for visas, admission, or parole.--
(A) Visas, admission, or parole.--An alien whom the
Secretary of State or the Secretary of Homeland Security (or
a designee of one of such Secretaries) knows, or has reason
to believe, meets any of the criteria described in subsection
(a) is--
(i) inadmissible to the United States;
(ii) ineligible to receive a visa or other documentation to
enter the United States; and
(iii) otherwise ineligible to be admitted or paroled into
the United States or to receive any other benefit under the
Immigration and Nationality Act (8 U.S.C. 1101 et seq.).
(B) Current visas revoked.--
(i) In general.--The issuing consular officer, the
Secretary of State, or the Secretary of Homeland Security (or
a designee of one of such Secretaries) shall revoke any visa
or other entry documentation issued to an alien who meets any
of the criteria described in subsection (a) regardless of
when issued.
(ii) Effect of revocation.--A revocation under clause (i)--

(I) shall take effect immediately; and
(II) shall automatically cancel any other valid visa or
entry documentation that is in the possession of the alien.

[[Page S3244]]

(3) Exception to comply with united nations headquarters
agreement.--Sanctions under paragraph (2) shall not apply to
an alien if admitting the alien into the United States is
necessary to permit the United States to comply with the
Agreement regarding the Headquarters of the United Nations,
signed at Lake Success June 26, 1947, and entered into force
November 21, 1947, between the United Nations and the United
States, or other applicable international obligations.
(c) Penalties.--Any person that violates, attempts to
violate, conspires to violate, or causes a violation of this
section or any regulation, license, or order issued to carry
out subsection (b) shall be subject to the penalties set
forth in subsections (b) and (c) of section 206 of the
International Emergency Economic Powers Act (50 U.S.C. 1705)
to the same extent as a person that commits an unlawful act
described in subsection (a) of that section.
(d) Implementation.--The President may exercise the
authorities provided under section 203 and 205 of the
International Emergency Economic Powers Act (50 U.S.C. 1702
and 1704) to carry out this section.
(e) Waiver.--
(1) In general.--The President may annually waive the
application of sanctions required by subsection (a) with
respect to a person if the President--
(A) determines that such waiver is in the national interest
of the United States; and
(B) not later than the date on which such waiver will take
effect, submits to the congressional committees listed in
paragraph (2) a notice of and justification for such waiver.
(2) Congressional committees listed.--The congressional
committees listed in this paragraph are the following:
(A) The Committee on Foreign Relations, the Committee on
Appropriations, and the Committee on Banking, Housing, and
Urban Affairs of the Senate.
(B) The Committee on Foreign Affairs, the Committee on
Appropriations, and the Committee on Financial Services of
the House of Representatives.
(f) Definitions.--In this section:
(1) Admitted; alien.--The terms ``admitted'' and ``alien''
have the meanings given those terms in section 101 of the
Immigration and Nationality Act (8 U.S.C. 1001).
(2) Foreign person.--The term ``foreign person'' means a
person that is not a United States person.
(3) Knowingly.--The term ``knowingly'' means, with respect
to conduct, a circumstance, or a result, means that a person
has actual knowledge, or should have known, of the conduct,
the circumstance, or the result.
(4) United states person.--The term ``United States
person'' means--
(A) a United States citizen, an alien lawfully admitted for
permanent residence to the United States, or any other
individual subject to the jurisdiction of the United States;
or
(B) an entity organized under the laws of the United States
or of any jurisdiction within the United States, including a
foreign branch of such entity.

SEC. 1283. RESPONSIBILITY AND TRANSPARENCY IN THE MINING
SECTOR.

(a) List of Participating Entities.--
(1) In general.--Not later than 120 days after the date of
the enactment of this Act, and not less than annually
thereafter until the date described in subsection (e), the
Secretary of State shall submit to the appropriate
congressional committees a list of the entities described in
each of subparagraphs (A) and (B) of paragraph (2) that--
(A) participate in the mining sector of Burma;
(B) meet the criterion described in subsection (b)(1); and
(C) meet or have made significant progress towards meeting
the criteria in paragraphs (2) through (5) of subsection (b).
(2) Entities described.--The entities described in this
paragraph are the following:
(A) Entities that produce or process precious and
semiprecious gemstones.
(B) Entities that sell or export precious and semiprecious
gemstones from Burma or articles of jewelry containing such
gemstones.
(b) Criteria Described.--The criteria described in this
subsection are the following with respect to an entity:
(1) The entity publicly discloses beneficial ownership, as
such term is defined for purposes of the Myanmar Extractive
Industry Transparency Initiative (Myanmar EITI), and the
entity is not owned or controlled, either directly or
indirectly, by the Burmese military or security forces, any
current or former senior Burmese military officer, or any
person sanctioned by the United States pursuant to any
relevant sanctions authority.
(2) The entity publicly discloses any politically exposed
persons, as defined by the Myanmar EITI, who are beneficial
owners, as defined under the Myanmar EITI.
(3) The entity publicly discloses valid authorization,
license, or permit to produce, process, sell, or export
minerals or gemstones, as applicable.
(4) The entity publicly discloses payments to the
Government of Burma, including tax and non-tax, license, or
royalty payments, and other payments or contract terms as may
be required under Myanmar Extractive Industry Transparency
Initiative standards.
(5) The entity undertakes robust due diligence, in line
with the OECD Due Diligence Guidance for Responsible Supply
Chains of Minerals from Conflict-Affected and High-Risk
Areas, including public reporting.
(c) Publication of List.--The Secretary of State shall
publish the list under subsection (a) and shall periodically
update such list as appropriate.
(d) Guidance.--The Secretary of State shall issue guidance
to relevant companies regarding supply-chain due diligence
best practices applicable to importation of gemstones or
minerals that may be of Burmese origin or articles of jewelry
containing such gemstones to mitigate the potential risks
associated with the importation of such items.
(e) Termination.--The requirement under subsection (a)
shall terminate on the date on which the President certifies
to the appropriate congressional committees that the
Government of Burma has taken substantial measures to reform
the mining sector in Burma, including the following:
(1) Requiring the mandatory disclosure of payments, permit
and license allocations, project revenues, relevant contract
terms, and beneficial ownership, including identifying any
politically exposed persons who are beneficial owners,
consistent with the approach agreed under the Myanmar EITI
and with due regard for civil society participation.
(2) Separating the commercial, regulatory, and revenue
collection responsibilities within the Myanmar Gems
Enterprise and other key state-owned enterprises to remove
existing conflicts of interest.
(3) Monitoring and undertaking enforcement actions, as
warranted, to ensure that entities fully adhere to
environmental and social impact assessment and management
standards in accordance with international responsible mining
practices, the country's environmental conservation law and
other applicable laws and regulations, and that entities
uphold occupational health and safety standards and codes of
conduct that are aligned with the core labor standards of the
International Labour Organisation and domestic law.
(4) Actively seeking a comprehensive peace agreement that
addresses the transparent and fair distribution of benefits
from natural resources, including local benefit-sharing,
taking into consideration proposals on fiscal federalism for
new governance arrangements in resource-rich regions.
(5) Implementing on a timely basis policy reforms aligned
with the recommendations of the multi-stakeholder Jade and
Gemstone Support Committee and reporting regularly on such
reforms.
(6) Reforming the process for valuation of gemstones at the
mine site, including developing an independent valuation
system to prevent undervaluation and tax evasion.
(7) Requiring companies bidding for jade and ruby permits
to be independently audited upon the request of Myanmar Gems
Enterprise or the Minister of Natural Resources and
Environmental Conservation, and making the results of all
such audits public.
(8) Establishing a credible and transparent permitting
process that closely scrutinizes applicants, including based
on past performance, and prevents unscrupulous entities from
gaining authorized access to concessions or the right to
trade in minerals or gemstones.
(9) Establishing effective oversight of state-owned
enterprises operating in such sector, including through
parliamentary oversight or requirements for independent
financial auditing.

SEC. 1284. DETERMINATION AND REPORT ON ACCOUNTABILITY FOR
ETHNIC CLEANSING, CRIMES AGAINST HUMANITY, AND
GENOCIDE IN BURMA.

(a) In General.--Not later than 180 days after the date of
the enactment of this Act, the Secretary of State shall
submit to the appropriate congressional committees a report
that--
(1) describes--
(A) allegations of ethnic cleansing, crimes against
humanity, and genocide in Burma; and
(B) potential transitional justice mechanisms in Burma; and
(2) includes a determination whether the events that took
place in the state of Rakhine in Burma, starting on August
25, 2017, constitute ethnic cleansing, crimes against
humanity, or genocide.
(b) Elements.--The report required under subsection (a)
shall include--
(1) a description of--
(A) incidents that may constitute ethnic cleansing, crimes
against humanity, or genocide committed by the Burmese
military against the Rohingya minority and the identities of
any other actors involved in such incidents;
(B) the role of the civilian government in the commission
of such incidents;
(C) incidents that may constitute ethnic cleansing, crimes
against humanity, or genocide committed by violent extremist
groups or anti-government forces;
(D) incidents that may violate the principle of medical
neutrality and, to the extent possible, the identities of any
individuals who engaged in or organized such incidents; and
(E) to the extent possible, a description of the
conventional and unconventional weapons used for such crimes
and the sources of such weapons;
(2) a description and assessment by the Department of
State, the United States Agency

[[Page S3245]]

for International Development, the Department of Justice, and
other appropriate Federal departments and agencies of
programs that the United States has already undertaken or is
planning to undertake to ensure accountability for ethnic
cleansing, crimes against humanity, and genocide perpetrated
against the Rohingya by the military and security forces of
Burma, the state government of Rakhine, Buddhist militias,
and all other armed groups fighting in Rakhine, including
programs--
(A) to train civilian investigators within and outside of
Burma and Bangladesh on how to document, investigate, develop
findings of, and identify and locate alleged perpetrators of
ethnic cleansing, crimes against humanity, or genocide in
Burma;
(B) to promote and prepare for a transitional justice
process or processes for the perpetrators of ethnic
cleansing, crimes against humanity, and genocide occurring in
the State of Rakhine in 2017; and
(C) to document, collect, preserve, and protect evidence of
ethnic cleansing, crimes against humanity, and genocide in
Burma, including by providing support for Burmese,
Bangladeshi, foreign, and international nongovernmental
organizations, the United Nations Human Rights Council's
investigative team, and other entities engaged in such
investigative activities; and
(3) a detailed study of the feasibility and desirability of
potential transitional justice mechanisms for Burma,
including a hybrid tribunal, to address ethnic cleansing,
crimes against humanity, and genocide perpetrated in Burma,
including recommendations on which transitional justice
mechanisms the United States should support, why such
mechanisms should be supported, and what type of support
should be offered.
(c) Protection of Witnesses and Evidence.--The Secretary of
State shall take due care to ensure that the identification
of witnesses and physical evidence are not publicly disclosed
in a manner that might place such persons at risk of harm or
encourage the destruction of evidence by the Government of
Burma.
(d) Authorization to Provide Technical Assistance.--
(1) In general.--The Secretary of State is authorized to
provide assistance to support appropriate entities that are
undertaking the efforts described in paragraph (2) with
respect to ethnic cleansing, crimes against humanity, and
genocide perpetrated by the military and security forces of
Burma, the state government of Rakhine, Buddhist militias,
and all other armed groups fighting in Rakhine.
(2) Efforts against human rights abuses.--The efforts
described in this paragraph are the following:
(A) Identifying suspected perpetrators of ethnic cleansing,
crimes against humanity, and genocide.
(B) Collecting, documenting, and protecting evidence of
such crimes and preserve the chain of custody for such
evidence.
(C) Conducting criminal investigations.
(D) Supporting investigations conducted by other countries,
as appropriate.
(3) Additional support.--The Secretary of State, taking
into account any relevant findings in the report required by
subsection (a), is authorized to support the creation and
operation of transitional justice mechanisms, including a
potential hybrid tribunal, to prosecute individuals suspected
of committing ethnic cleansing, crimes against humanity, or
genocide in Burma.

SEC. 1285. APPROPRIATE CONGRESSIONAL COMMITTEES.

In this subtitle, the term ``appropriate congressional
committees'' means--
(1) the Committee on Armed Services and the Committee on
Foreign Relations of the Senate; and
(2) the Committee on Armed Services and the Committee on
Foreign Affairs of the House of Representatives.
______