Export Restrictions

Author: Dr. Wilhelm Buttler
Issue: 23 October 2017

Radiation meters are considered to be sensitive products because they might be used in connection with nuclear weapons. Of course, we do not manufacture our instruments for use in connection with nuclear weapons, but for radiation protection purposes, having regard to the Council Directive 96/29/EURATOM of 13 May 1996 or its successor 2013/59/EURATOM of 5 December 2013, both »laying down basic safety standards for protection against the dangers arising from exposure to ionising radiation«.

Despite our peaceful intentions, exporting our products is subject to European and additional German export regulations. This may affect you, our esteemed non-German customer and user of our instruments, in two ways:

  • If your country is an EU Member, you have to observe European and your national export regulations if you plan to transfer our products to countries outside the EU.

  • If your country is outside the EU, we have to observe European and German export regulations prior to delivering to you. Depending on the country of destination and the nature of the goods, we have to apply for an export authorisation. This will usually be a lengthy and laborious procedure, both for you and us. Details of this procedure will be described later.


Terms, Definitions and Abbreviations

  • For the purpose of this document:
    export shall mean the transfer from an EU Member State to a state outside the EU, and
    intra-Community transfer shall mean a transfer among EU Member States.
    Transfer as a single word shall be a generic term covering both export and intra-Community transfer. Transfer of goods is irrespective of whether the goods are new or used or returned after repair, and whether the goods are shipped against payment or loaned only. Whenever an item moves from one country to the other for whichever reason, this means a transfer.

  • AWV: AWV is the abbreviation for »Außenwirtschaftsverordnung«, a German regulation for transfer of goods, services and all kinds of financial assets. AWV also transforms international decisions such as UN resolutions (embargoes) into national legislation.
    Article 9 (Article 5d in former AWV issues) is particularly important for radiation meters. It defines a list of countries operating nuclear facilities without submitting themselves to the inspection of the international community (IAEA), thereby making themselves suspicious. Current (10/2017) members of that list are Algeria, Iran, Iraq, Israel, Jordan, Libya, North Korea, Pakistan and Syria (up to 05/2011 India was also on that list). Quite astonishing that Israel appears on that list, a country to whom Germany usually claims to feel obliged in a particular way. We have to apply for an authorisation prior to exporting any of our products to the countries mentioned in Article 9.

  • BAFA (»Bundesamt für Wirtschaft und Ausfuhrkontrolle«, www.bafa.de) is the German authority competent for export control. Applications for export authorisation have to be addressed to BAFA.

  • Military List shall mean the »COMMON MILITARY LIST OF THE EUROPEAN UNION«. This is an EU document of type »C« (communication, e.g. 2011/C 86/01 for the Common Military List of 2011), which is amended frequently. Automess products are not concerned by the Military List. Note that EU Member States are given the right to adopt a National Military List extending the Common Military List.

  • EC-Dual-Use-Reg shall mean the »COUNCIL REGULATION (EC) No 428/2009 of 5 May 2009 setting up a Community regime for the control of exports, transfer, brokering and transit of dual-use items«. Like any other EC Regulation it is in force in all EU Member States. It entered into force on 27 August 2009 as the successor of 1334/2000 which was significantly amended on several occasions and, since further amendments were to be made, was recast in 2009 in the interests of clarity. Particularly important is Annex I, the »LIST OF DUAL-USE ITEMS«.

  • Listed shall briefly denote any item listed in Annex I of the EC-Dual-Use-Reg. Exporting listed items requires authorisation. BAFA takes the view that some of our products are listed as item 1A004c. We do not share this view, however we cannot successfully defend ourselves against this view. The export of, among others, 1A004c items to certain countries of destination is facilitated through the General Export Authorisations Nos EU001 and EU002 presented in Annexes of the EC-Dual-Use-Reg.


When is an Export Authorisation required?

The Sanctions Lists need to be observed first because they are of overriding significance regarding any transfer, including a domestic one. Based on various international decisions the EU has released regulations to prevent the support of terrorism. According to these regulations, no financial assets or economic resources of whichever kind are permitted to be made available to the individuals mentioned in the Sanctions Lists. In other words, the Sanctions Lists do not particularly apply to trans-border control, but are general total embargoes imposed on certain individuals, irrespective of the nature of the economic good and irrespective of the country of destination. The Sanctions Lists are subject to frequent changes. The United Nations publish the Consolidated United Nations Security Council Sanctions List.

Now we assume that the recipient is not on the Sanctions Lists. The table below summarises under which circumstances we will require, prior to delivery, an export authorisation for each individual export project. The foundation of that table are AWV and EC-Dual-Use-Reg. There are restrictions regarding the country of destination, and others regarding the products.

Is the country of destination an EU Member?
Yes No
Is an embargo imposed on the country of destination (current embargo countries according to German regulations see www.ausfuhrkontrolle.info) or is the country of destination one of the following (in alphabetical order): Algeria, Iran, Iraq, Israel, Jordan, Libya, North Korea, Pakistan, Syria?
No
Are at least some of the products listed?
Yes
No Yes
Is the country of destination one of the following (in alphabetical order): Argentina, Australia, Canada, Croatia, Iceland, Japan, New Zealand, Norway, South Africa, South Korea, Switzerland including Liechtenstein, Turkey, USA?
Yes No
no authorisation required Export authorisation required!

This table cannot consider all details of export regulations and is therefore nothing but a guide without obligation. We reserve the right to decide particular export projects differently even if the table should not call for an export authorisation.

The high administrative effort, the processing time of BAFA amounting to many months in most cases, and the often very low chances of success make small orders a financial loss for us. We kindly ask you for your understanding that for these reasons we reserve the right not to accept particular orders.

We also kindly ask you for your understanding that we can confirm orders requiring export authorisation only with the reservation that export will finally be granted, and that we cannot promise delivery times because the processing time of BAFA is unknown.


Which Documents do we require from You in order to apply for an Export Authorisation?

If we shall apply for an export authorisation, you, our esteemed customers, have to contribute to this procedure by supplying us with information and declarations. Additionally you need to have much patience. If you have the nerve to do all that, we need these documents from you:

  • Order: Your order on your business paper including your letterhead clearly indicating the identity of your company or organisation, particularly your address and contact details (phone, fax, e-mail, and so on).

  • Name of the End-User: Should you as the consignee not be the end-user of the products: Name, address and contact details (phone, fax, e-mail, and so on) of the end-user. Normally this information should follow from the End-User Certificate (EUC, see below the last item of this list). Should the EUC be difficult to read for German authorities, for example for linguistic reasons, please clarify the end-user's identity, for example in your order.
    BAFA is very particular about distinguishing consignee(buyer) and end-user. Example: A government or a ministry/department planning to purchase instruments for national institutions is not regarded as the end-user. Solely the institution practically using the instruments is regarded as the end-user.

  • End-User's Profile: Detailed description of the end-user's activity. This may be in form of his company profile and, if applicable, data sheets of the products the end-user manufactures or deals with. A simple reference to the end-user's homepage is not accepted because BAFA feels neither obliged nor responsible to pick out the correct information from there.

  • Consignee's Profile: If the consignee(buyer) (for example, one of our representatives) and the end-user are not the same, BAFA will usually also demand a detailed description of the consignee's activity (company profile, data sheets, and so on).

  • End-Use Certificate EUC (sometimes also called end-use statement or end-user statement): Declaration of the end-user on his business paper including his letterhead where and what the goods shall be used for. A blank sample published by BAFA containing all the required statements can be found here. You may copy the text from that sample and paste it into your individual EUC. Please specify the end-use (the line »and will only be used for ___« in the sample) as detailed as possible. Use multiple lines if required, you are not forced to squeeze this information into one line. Do not just generally declare »measurement of radiation« which will be considered as too meaningless.

  • Proof of import into the country of destination: If the export has been granted and carried out, BAFA demands in many cases a proof that the goods really arrived in the country of destination. For that purpose official documents (»Bill of Entry«) issued by the customs of the country of destination have to be presented to BAFA.

Please send us all of these documents. Electronic form (PDF) is strongly preferred because the application for export authorisation also works in electronic form. This also holds for the profiles of the end-user and the possibly differing recipient! Please don't leave it to us to pick out the necessary information from the Internet. You know better than us where the correct information can be found and thus can contribute to speed up the procedure!

As already mentioned, unfortunately BAFA needs usually many months to decide, even in case of a refusal. During that processing time, please refrain from asking for the state of the procedure. Attempts to accelerate the procedure by frequently asking for its state have proven ineffective. They result more in annoying the BAFA officials in charge.

Furthermore you have to expect that, despite your documents were submitted completely, BAFA may request more information. Sometimes these checkbacks are quite astonishing, for example what the activity of the end-user, a fire brigade in this particular case, would be. You need to be patient even with such questions.

Also please observe that your order is complete from the very beginning. Adding some items later during the procedure, even if they are some spare parts only, is impossible. The procedure would have to start all over again!

Of course we realise that all this demands a lot from our customers. However, and very much to our regret, the only thing we can say is that all these obstacles constituting a severe threat to our export activities are beyond our decision. We also realise and accept that customers may decide to cancel orders because of these conditions.


Item 1A004c of the EC-Dual-Use-Regulation

Earlier we mentioned that BAFA takes the view that some of our products are listed as item 1A004c. Now we would like to explain why we do not share this view.

Annex I of the EC-Dual-Use-Reg defines 1A004c as follows:

Protective and detection equipment and components, other than those specified in military goods controls, as follows:
[ a. ... b. ... ]
c. Nuclear, biological and chemical (NBC) detection systems, specially designed or modified for detection or identification of any of the following, and specially designed components therefor:
1. Biological agents "adapted for use in war";
2. Radioactive materials "adapted for use in war"; or
3. Chemical warfare (CW) agents.
[...]
Note: 1A004 does not control:
a. Personal radiation monitoring dosimeters;
b. Equipment limited by design or function to protect against hazards specific to residential safety and civil industries, such as mining, [, quarrying, ...].

Technical Notes:
1. 1A004 includes equipment and components that have been identified, successfully tested to national standards or otherwise proven effective, for the detection of or defence against radioactive materials "adapted for use in war" [...], even if such equipment or components are used in civil industries such as mining, [, quarrying, ...].
[2. ...]

Now we try to understand what this shall mean:

  • Right in the first sentence we meet the earlier explained Military List (»other than those specified in military goods controls«). This means that a radiation meter cannot be listed simultaneously in both the Military List and Annex I of the EC-Dual-Use-Reg, but at most in one of these. This is a consolation in case an authority decides a radiation meter to be listed as item 1A004c, which then confirms at the same time that this meter is not on the Military List.

  • Listed radiation meters are »specially designed or modified for detection or identification« of »radioactive materials "adapted for use in war"«.
    EC-Dual-Use-Reg defines the term "adapted for use in war" as follows: »"Adapted for use in war" means any modification or selection (such as altering purity, shelf life, virulence, dissemination characteristics, or resistence to UV radiation) designed to increase the effectiveness in producing casualties in humans or animals, degrading equipment or damaging crops or the environment.«
    Mr. Average reads this definition as the complicated description of radiation meters specially made for practices involving nuclear weapons. This does not apply to our instruments. Our instruments are definitely not made for the particular purpose of developing or manufacturing nuclear weapons. They aren't even suited for that purpose because they are radiation protection meters unable to determine nuclide vectors, degrees of enrichment, or similar. So far, BAFA shares this view. However, BAFA applies the term »radioactive materials "adapted for use in war"« not only to nuclear weapons in laboratories or arsenals, but also to radioactive materials produced after the explosion of a nuclear weapon. Since an exploded nuclear weapon generates high dose rates, BAFA considers high range dose rate meters as suspicious.

  • If some equipment is considered listed, the same applies to its spare parts, unless these are standard parts: », and specially designed components therefor«.
    Sometimes even BAFA finds it hard to decide whether a spare part is specially designed, i.e. listed, or whether it is an unsuspicious standard part. We know from experience that two different BAFA officials decided differently in case of the same spare part.

  • The Note, 1A004 would not control »Personal radiation monitoring dosimeters«, is not really helpful because that term is not defined and therefore ambiguous.

  • The Technical Note 1 (»1A004 includes equipment and components that have been identified, successfully tested...«) finally says that, differently from the earlier description »specially designed or modified«, the equipment only needs to be suited to be considered listed. This Technical Note entered into force in January 2009 through EU Regulation 1167/2008. This Note is so general that it can be interpreted (or misinterpreted) in almost any way. Maybe BAFA took this opportunity to declare our Teletectors and the »specially designed components therefor« as listed items from 2009 on. But this may also be pure coincidence because our Scintomat 6134A(/H) is considered listed even since May 2004. In all cases BAFA's verbal explanation was the instruments' high range which would allow to measure the radiation remaining after the explosion of a nuclear weapon.

Conclusion

Following BAFA's view we have to imagine this scenario:

A nuclear weapon explodes. Some poor man, with a Scintomat or Teletector in his hand, considers measuring the radiation remaining after the explosion. That suspicious activity shall be prevented through export controls.

This scenario appears absurd. It concerns the victims of nuclear attacks, not the perpetrators. We understand the aim of export controls not to make resources available to perpetrators.

Honestly we do not understand this attitude of BAFA. We do not understand why, after many decades of worldwide success in peaceful radiation protection, suddenly our Teletectors are suspected to spoil peace on earth. On the other hand, Germany seems to have no problem exporting 200 combat tanks to Saudi Arabia (the plan to do so »leaked out« in July 2011). We feel that small companies like ours are welcome to serve as occupational therapy for our authorities.


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