VZCZCXYZ0015 PP RUEHWEB DE RUEHRL #0281/01 0431635 ZNY CCCCC ZZH P 121635Z FEB 07 FM AMEMBASSY BERLIN TO RUEHC/SECSTATE WASHDC PRIORITY 7021 INFO RUEHLO/AMEMBASSY LONDON PRIORITY 7937 RUEHFR/AMEMBASSY PARIS PRIORITY 8463 RUEHKO/AMEMBASSY TOKYO PRIORITY 1368 |
C O N F I D E N T I A L BERLIN 000281 |
1. (U) This is an action request -- please see paragraph 4. 2. (C/REL FRA, GBR, GER, JPN) German Export Control Division Desk Officer Ina Schuett passed the following English-language discussion paper concerning Missile Technology Control Regime (MTCR) denial notifications to Global Affairs officer and counterparts from the French, British, and Japanese Embassies February 9. Schuett said Germany plans to distribute the Discussion Paper on Denial Notifications and Related Procedures as a Best Practices Guide to other MTCR partners before the April Reinforced Point of Contact (RPOC) meeting in Paris. In advance of that, however, Schuett said the German Government would like comments on the paper by March 2 from the United States, France, Japan, and the UK. Germany would revise the paper based on their comments before distributing it to the other MTCR partners. 3. (C/REL FRA, GBR, GER, JPN) Begin text of German Discussion Paper and Annex: Missile Technology Control Regime Discussion Paper Denial Notification and Related Procedures In 2006, MTCR Partners exchanged their views on how to improve the denial notification system and related procedures via a survey conducted by Germany. A summary of the responses to the survey was presented at the Copenhagen Plenary 2006 (POC 232/2006). Partners agreed to further explore the matter at the RPOC 2007 on the basis of a discussion paper with proposals for improvement of denial notification. 1. This paper proposes to agree on basic and additional elements for denial notification and use of denial information (see ANNEX I). These elements derive from experiences in exchanging such information by Partners and from preferences expressed by Partners in the "Survey on Denial Notification and Related Procedures". 2. The MTCR Aide Memoire provides that Partners will review the basis for their denials three years after the distribution of a denial notification and advise the other subscribing Governments of its conclusions. To facilitate the management of the periodical denial review for Partners and the POC alike, Germany proposes to further improve the current MTCR denial database. A further version of the ePOC notification database could allow Partners to renew/revoke notifications online. Revoked denials would be moved for information purposes to a separate database for revoked denials for a limited period of five years. The date of the latest renewal/the date of revocation would appear in the databases together with the notification concerned. This way, Partners could search the data base for those of their denials that are due for review. The POC would no longer need to update the denial databases on a manual basis. ANNEX I MTCR Best Practices for Sharing and Using Denial Information MTCR Partners, having affirmed that they apply strict national export controls in accordance with the MTCR Guidelines, agree on the importance of the timely exchange of information on denial of export authorisations. The following practices derive from experiences in exchanging such information by Partners and from preferences expressed by Partners in the "Survey on Denial Notification and Related Procedures". The Best Practices are intended to strengthen the denial notification process by summarizing the sense of the Partners as to appropriate ways to share and use denial information. They are consistent with the MTCR Guidelines and all relevant MTCR consensus decisions. This document confers no greater obligations upon Partners than they have assumed under the MTCR Guidelines. The practices recommended for notifications of denial of authorizations of transfers and for information notifications are identical, except as they relate to the "no-undercut" and consultation policies related to denials of transfers of listed items, as set out in the MTCR Aide Memoire. BASIC ELEMENTS In sharing and using denial information Partners take into account the following list of basic elements: Decision on Transfers 1. Partners should advise the Point of Contact of a denial in response to a formal inquiry or a request for export license within four weeks, or as soon thereafter as practicable. 2. While denials are subject to appeal in many Partner states, Partners should, for the sake of early detection of procurement efforts, and where national legislation permits, provide a denial notification irrespective of whether an appeal is pending or anticipated. Information to the effect that an appeal is pending or anticipated may be included in the notification, and the absence of a subsequent communication or revocation will be construed as indicating that the denial was upheld. Content of Denial Notification 3. In order to maximize the utility of notifications to recipients, and in an effort to accumulate information that could suggest patterns of procurement behaviour, Partners are encouraged to provide as much detail relating to reasons for denial as feasible. Such information is particularly useful in catch-all denials to understand and act properly on them. Consultation Procedure 4. Consultations between Participating Governments on an export application, when a notification of denial of export for an essentially identical transfer is in effect, should take place in a timely manner. Unless otherwise agreed between the Partners concerned, the Government which provided the notification should respond with substantive information within a period of four weeks of consultations having been initiated. In the event that information is not forthcoming within this period, the consultation process may be regarded by the Government considering the export as complete. 5. Verification whether a notification of denial of export for an essentially identical transfer is in effect should take place on a case by case basis in the context of national discretion. As a rule, the term "essentially identical transfer" should be considered in comparison to the transfer denied, as one that comprises cases that concern an item with the same specifications and performance which is destined for the same consignee. Complementary Information 6. It is affirmed that catch all-denials can significantly contribute to an understanding of procurement behaviour and programs of concern. Partners are encouraged to share such information to the greatest extent possible. Use of Information for Industry Awareness 7. Partners are encouraged to make appropriate use of the information in the MTCR denial databases to improve the understanding by exporters of emerging proliferation trends. Such information on potentially sensitive items and destinations will be configured in accordance with the need to preserve the confidential nature of notifications. ADDITIONAL ELEMENTS In sharing and using denial information, Partners may additionally take into account the following elements: Voluntary Consultation 1. Partners may consult one another before granting a license for a transfer of an Annex item that is similar to one denied in pursuit of the objectives of the Guidelines, and destined for the same consignee. 2. Partners may consult one another before authorizing an export of a non-listed item that is identical or similar to those indicated in an information notification, and destined for the same consignee. Evaluation of Denials in the Licensing Process 3. In the evaluation of transfer applications for an Annex item, Partners may take into account, as appropriate, denials that do not concern an essentially identical transfer. This may be useful in cases where the item of the transfer application can technically be used for sensitive MTCR-related activities that were the reason for denial in question. End Text of German Discussion Paper and Annex. 4. (C/REL FRA, GBR, GER, JPN) Post requests USG comments on the Discussion Paper by March 2, as requested by the German Government. TIMKEN JR |