GERMANY'S REVISED DISCUSSION PAPER ON MTCR DENIAL

UNCLAS BERLIN 000598 SIPDIS SENSITIVE SIPDIS STATE FOR ISN/MTR AND EUR/AGS E.O. 12958: N/A TAGS: ETTC MNUC MTCRE PARM KSCA TSPA GM FR SUBJECT: GERMANY'S REVISED DISCUSSION PAPER ON MTCR DENIAL NOTIFICATIONS REF: A. BERLIN 541 ¶B. STATE 28937 ¶C. BERLIN 281 ¶D. 06 STATE 188791 ¶1. (SBU) German MFA Export Control Division Desk Officer Andreas Kauke passed the following English-language Missile Technology Control Regime (MTCR) Discussion Paper to Global Affairs officer March 20. Kauke said Germany also planned to submit the Discussion Paper on Denial Notification and Related Procedures to MTCR partners via the electronic Point of Contact (ePOC). Germany would like to discuss the paper at the April 12-13 Reinforced Point of Contact (RPOC) meeting in Paris and put it on the agenda for the MTCR Plenary later this year. ¶2. (U) Begin text of English-language paper: DE March 2007 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 ystem and related procedures via a survey conductd by Germany. A summary of the responses to thesurvey was presented at the Copenhagen Plenary 206 (POC 232/2006). Partners agreed to further eplore the matter at the RPOC 2007 on the basis of discussion paper with proposals for improvement f denial notification. ¶1. This paper propose to agree on basic and additional elements for dnial 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 enhance transparency, Germany proposes to further improve the current MTCR denial database. A further version of the ePOC notification database could allow Partners to renew notifications online. The date of the latest renewal would appear in the database together with the notification concerned. This way, Partners could search the data base for those of their denials that are due for 
review. 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 summarising 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 denial notifications 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 after the final decision, or as soon thereafter as practicable. However, Partners may, in order to early detect 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. Content of Denial Notification ¶2. 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 ¶3. 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, 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 will normally be regarded by the Government considering the export as complete. ¶4. Verification whether a notification of a denial for an export of 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 ¶5. 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. ADDITIONAL ELEMENTS In sharing and using denial information, Partners may additionally take into account the following elements: Decision on Transfers ¶1. While denials are subject to appeal in many Partner states, Partners can, 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. Voluntary Consultation ¶2. Partners may consult one another before granting a license for a transfer of an Annex item that is not identical, but similar to one denied in pursuit of the objectives of the Guidelines, and destined for the same consignee. ¶3. 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 ¶4. In the evaluation of transfer applications for an Annex item, Partners may take into account, as appropriate, denials for the same consignee 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 English-language paper. KOENIG