MEGAPORTS: JAPAN SEEKS CLARIFICATION ON THIRD

UNCLAS SECTION 01 OF 02 TOKYO 000257

SENSITIVE
SIPDIS

STATE FOR EAP/J
STATE PASS DOE FOR T. MUSTIN, W. KILMARTIN AND D. CHONG
DHS FOR C. BRZOZOWSKI AND M. MOONEY
CBP CONTAINER SECURITY INITIATIVE FOR D. STAJCAR

E.O. 12958: N/A
TAGS: ETTC EWWT ENRG ELTN ETRD JA
SUBJECT: MEGAPORTS: JAPAN SEEKS CLARIFICATION ON THIRD
COUNTRY CARGO INFORMATION-SHARING

REF: A. 09 STATE 64019

B. 09 STATE 16717

C. 09 TOKYO 638

D. 09 TOKYO 468


1. This is an action request. Please see paragraph 9.


2. (SBU) Summary: The USG should explain how it will use
container information on third country cargo shipments
scanned by the Megaports Initiative pilot project in
Yokohama, Ministry of Foreign Affairs (MOFA) and Ministry of
Finance (MOF) Customs Bureau officials told emboffs February

1. Though aware that Megaports is a U.S. Department of Energy
(DOE) program, the officials reiterated the GOJ's request to
exchange cargo shipment information between Japanese and U.S.
customs authorities under the Customs Mutual Assistance
Agreement (CMAA),which governs cooperation between the
Japanese Customs Administration (Japan Customs) and U.S.
Customs and Border Protection (CBP). Under Japanese law, the
officials explained, the CMAA is the only existing legal
mechanism to share cargo shipment information with the United
States; developing a separate agreement or mechanism would
"take years," the officials asserted. End summary.


3. (SBU) MOFA Second North America Division North American
Affairs Bureau Official Kako Sasai and MOF Customs and Tariff
Bureau Enforcement Division Deputy Director Atsushi Sakai
asked to meet with emboffs from DOE, State, and CBP February
1 to discuss information-sharing issues related to the
Megaports Initiative pilot project in Yokohama. Sakai
claimed the GOJ had not initially expected the USG to request
cargo information regarding third-country shipments, and
Japan Customs in recent months has begun an internal review
of this matter. Under Japanese law, personal information
used by Japan Customs is kept confidential and can only be
shared with other parties under the auspices of a legal
instrument such as the CMAA, Sakai explained. Although the
GOJ understands that Megaports is administered by DOE, not
CBP, the GOJ believes the CMAA is the only existing legal
instrument that would allow information exchange with the
USG; developing a separate agreement or mechanism would "take
years."


4. (SBU) Sakai further explained Japan Customs is reviewing
this issue in light of Japan's Customs Law Article 108-2,
which states Japan Customs can share information with foreign
customs authorities under the following three conditions
(paraphrased):

--The foreign customs authority provides to Japan Customs the
equivalent type of information as it requests from Japan
Customs;

--The foreign customs authority maintains the same level of
confidentiality as Japan Customs; and

--Information provided by Japan Customs is not used for
anything other than its designated purpose.


5. (SBU) To determine whether information sharing on third
country cargo under the Megaports Initiative would meet the
conditions above, Sakai said, the GOJ requests responses to
the four questions it posed to the USG in October 2009 during
a Megaports delegation's visit to Tokyo. Sakai noted that
the USG response to these questions listed below should come
from CBP.


TOKYO 00000257 002 OF 002


--Question 1: How would CBP (and other relevant USG
authorities) utilize information on containers bound for
third party countries other than the U.S., especially in
light of the scope specified in the CMAA?

--Question 2: Why does the USG (i.e., DOE) want to have
container numbers?

--Question 3: How would information on containers bound for
third party countries other than the United States assist
Customs operations in the United States?

--Question 4: From a reciprocal viewpoint, if the USG
detected anomalies in containers bound for third party
countries other than Japan, could the USG provide the GOJ
with equivalent information?


6. (SBU) Sakai said the GOJ wants to work with the USG to
establish a legal justification to share third-country
information and hopes the USG will answer the four questions
above in an "appropriate" way to help make the case. In
further urging the USG to respond to the aforementioned GOJ
queries, Sakai cited CMAA Article 4(3)(b): "When the Customs
Administration of either Party considers that available
information may be relevant to serious customs offenses that
could involve substantial damage to the economy, public
health, public security, or any vital interest of the country
of the other Customs Administration, the former Customs
Administration shall, upon its own initiative, provide the
latter Customs information with such information."


7. (SBU) Sakai suggested that, ideally, the USG's responses
would explain how third country cargo shipment information
would affect the U.S. economy or public security.
Specifically, concrete examples of how this cargo information
would assist "investigation, detection and/or prevention of
serious offenses against U.S. customs laws" would help Sakai
convince his superiors to accept a legal basis for
information-sharing. (Note: Sakai also provided emboffs a
written memorandum, which he emphasized reflected his
"personal," not official, views. Post e-mailed the original
memorandum separately to EAP/J, DOE and DHS/CBP. End note.)


8. (SBU) Comment: Although conceding that Megaports is a
DOE, not CBP, program, the GOJ continues to reiterate its
desire that GOJ agencies discuss Megaports between
"equivalent" U.S. counterparts (i.e., MOFA with State, Japan
Customs with CBP, and MLIT with DOE). Although this attempt
to structure GOJ bureaucratic engagement along its own
familiar inter-agency lines poses challenges for Megaports
implementation, the more serious concern may be the GOJ
position that the CMAA is the only available legal mechanism
for sharing information.


9. (U) Action Request: Post appreciates the Department's
assistance in providing an inter-agency response to the GOJ's
questions posed originally in October 2009. MOFA asks that
the USG provide a consolidated response to all four questions
in a single document.
ROOS