Comment Submitted by Brian Leber, Leber Jeweler Inc.

To Whom It May Concern: Thank you for the opportunity to submit comment regarding the interim final rule on the Prohibition and Conditions for Importation of Burmese and Non-Burmese Covered Articles of Jadeite, Rubies, and Articles of Jewelry Containing Rubies and Jadeite. Overall, the rules outlined in the Federal Register, Volume 74. No. 11 (January 16, 2009) accurately convey the language in the Tom Lantos Block Burmese JADE Act, HR 3890/Public law 110-286, which amends the Burmese Freedom and Democracy Act of 2003, in regards to jadeite and rubies mined or extracted from Burma and jewelry containing jadeite or rubies mined or extracted from Burma. This legislation and its subsequent enforcement will effectively deny the military regime in Burma of funds earned from the sale of gemstones that have assisted the military government in their ongoing campaign of terror against the people of Burma. Recommendation 1- US Note 4(a), Chapter 71, HTSUS, "provides that if an importer chooses to enter any good (or withdraws such good from warehouse for consumption) under 7103, 7113, or 7116 HTSUS, the presentation of this entry at the time of importation shall be deemed to be certification by the importer that any jadeite or rubies contained in such good were not mined or extracted from Burma." It is recommended that, to support this certification, importers should be required, at their sole expense, to conduct random spot checks utilizing lab testing conducted by an independent gemological laboratory accredited by US Customs and Border Protection (CBP) to confirm the veracity of their certification of non-Burmese origin and to maintain records showing a history of this auditing process as a matter of due diligence. Records pertaining to this laboratory testing should be maintained for a period of at least (5) five years and should be made available to CBP or other enforcement agencies upon request. Recommendation 2- Under Section 3A(c)(1) of the BFDA, the "condition for importation is that the exporter of the non-Burmese covered article has implemented measures that have substantially the same effect and achieved the same goals as the measures described in section 3A(c)(2)(B)(i) through (iv)." CBP has amended the regulations "to require that, at the time of importation into the United States, the importer have in his possession a written certification from the exporter (“exporter’s certification”) certifying that the jadeite or rubies were not mined or extracted from Burma, with verifiable evidence from the exporter that tracks the jadeite and rubies" from the mine onward. This amended language is a very workable solution to help assure non-Burmese origin of imported jadeite and rubies. It should be required of the importer that, to claim due diligence regarding their obligation to insure non-Burmese origin and to meet the minimum requirement to qualify as “verifiable evidence”, only government-validated certificates of origin should only be accepted from the country in which the jadeite or ruby is mined or extracted, providing the system of administration within the source country issuing such certification can fulfill all requirements stated in HR3890. There is anecdotal evidence related to alleged offers from non-US gemstone exporters to issue false documentation that would appear to meet minimum CBP requirements under the assumption CBP would be unable to verify the validity of these exporter certifications. Lacking any regulatory oversight over the standards regarding the issuance of the exporter documents could create an enforcement issue for CBP. It is further recommended that any protocols related to the issuance of exporter’s government- validated certification that guarantees non-Burmese origin should require random spot testing conducted by an independent gemological laboratory accredited by US Customs and Border Protection (CBP) to verify non-Burmese origin. Such testing should be at the sole expense of the exporter. Recommendation 3- Section 3A(d)(1) allows for the re-importation of jadeite, rubies, or jewelry containing jadeite or rubies into the United States that "are re-imported into the United States after having been previously exported from the United States, including those that accompanied an individual outside the United States for personal use, if they are re-imported into the United States by the same person who exported them, without having been advanced in value or improved in condition by any process or other means while outside the United States." As a condition for export with the intent of re-importation, it should be a requirement that any exported Burmese-covered article is detailed in such a way (including item count, carat weight, dimensions, reason for export, and any other relevant details) on any CBP documentation that it will insure the identical article is the one considered for re-importation. It should be required that with any non-Burmese covered jadeite or rubies exported for re- importation, upon re-importation the original Country of Origin Certificate would need to be included, plus a statement detailing any transformation that has occurred. Recommendation 4- Section 3A(d)(2) allows for "the importation of jadeite or rubies mined or extracted from a country other than Burma and articles of jewelry containing jadeite or rubies mined or extracted from a country other than Burma, that are imported by or on behalf of an individual for personal use and accompanying an individual upon entry into the United States." There is a risk that an individual could interpret this language as a potential means to circumvent the sanctions by assuming the claim of “personal use”, either for themselves or as a carrier working on behalf of another individual, would exempt them from any regulations pertaining to the import of covered articles. It is recommended that increased scrutiny be placed on individuals claiming a “personal use” exemption and that random spot testing be conducted to verify the imported articles are in fact non-Burmese. In addition, it should be emphasized that this “personal use” exemption only applies to non-Burmese covered articles with no exception. Recommendation 5- The legislation specifically requires "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." Reliance on a “paper-only” system without any built-in safeguards to verify authenticity and accuracy of documentation is ill advised, as the opportunity for fraud exists. The “system of verifiable controls” should include a requirement for random spot lab testing. Recommendation 6- It should be required that importers provide a written warranty to each buyer or ultimate consignee of non-Burmese jadeite or rubies and jewelry containing jadeite or rubies, affirming that an established system of verified controls from the mine to the supplier is in place and that officially-validated certification has accompanied the articles at all stages. Any warranty issued by the importer cannot rely solely on “personal knowledge” as sufficient evidence or proof of “verifiable evidence” in fulfilling obligations regarding verification of non-Burmese origin as stated in section 3A(c)(2)(B)(i) through (iv). Recommendation 7- Under section 3(c)(1) of the BFDA, "a specific condition for importation of non-Burmese covered articles it that the importer of non-Burmese covered articles maintain for a period not less than (5) five years from the date of entry of the non-Burmese covered article 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. The importer is further required to produce such information to the relevant United States authorities upon request." The gemstone industry has, in the past, reported to have a “five year supply” of ruby from Burma in existing inventory in the United States. The requirement for the maintenance of verifiable records related to the mining, importation, and exportation of non-Burmese covered articles for a minimum of (5) five years should be maintained. Economic Effects- Enforcement of the aforementioned rules pertaining to the prohibition of Burmese jadeite and rubies will prove to be an effective tool as part of the US government’s efforts to enforce effective and targeted sanctions against nations that have committed agriegious human rights violations. In 2001, the Burmese regime was officially earning less than US $20 million at the government run gem auctions. In a six-year period, they have shown a 28x increase in revenue from this valuable natural resource. (Officially reported at US $562 million in 2007.) The regime itself holds a majority share in every mining project in Burma. Partners in the mine are often senior government officials or close allies. They include Myanmar-Tagaung Company (a subsidiary of Hone Pan Company) owned by United Wa State Army (UWSA), described by the US State Department as the "most heavily armed narco-traffickers", and Htoo Trading Company owned by U Tay Za, a well-known arms dealer and close accomplice of Senior General Than Shwe. Villages in the area of the mining operations have been forcibly relocated by the military as part of efforts to control gem resources. To quote Soe Myint, a leader in exile of detained opposition leader Aung San Suu Kyi's National League for Democracy, “Most of the gems are mined by government firms, or those affiliated with the junta, the generals' relatives and cronies...Whether it's jade, rubies or sapphires, locals cannot mine them anymore…. The local people have nothing else to do because all the land has been confiscated by the government and government companies." Because the civilian population is often nothing more than exploitable (often unpaid, forced and/or child) labor, they receive very little direct income from the legitimate gem trade in Burma and any negative effect on them will be negligible. It is over four decades of corrupt and violent rule by Burma’s generals that has caused the hardships facing the people of Burma, not any sanctions directed solely against the brutal leaders of the regime. Conclusion- CBP is on the front lines of enforcement of trade prohibitions and is critical to the success of the JADE Act. The interim final rule provides an excellent platform that offers both very workable and realistic means to uphold the law as written and to support the spirit of the law drafted by the US Congress. I have complete and total confidence in the effectiveness and efficiency of CBP in enforcing import regulations and maintaining secure borders. My company offers our full support to any CBP efforts related to this issue and commends your agency for your ongoing work. Feel free to contact me if I can offer any additional information that will assist you with your efforts. Respectfully yours, Brian Leber President