Ref. : TRA CR 1015/9/7

4 October 2001

Dear Sirs,

Chemical Weapons (Convention) Bill

Introduction

This circular aims to familiarize the local chemical industry and related sectors of the requirements of the Chemical Weapons (Convention) Bill (the Bill) which was published in the Government Gazette on 28 September and will be introduced into the Legislative Council on 7 November 2001. The Bill seeks to provide the Government with the necessary legal authority to fully implement the "Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on their Destruction" (the "Chemical Weapons Convention" or "the Convention") in the Hong Kong Special Administrative Region (Hong Kong).

The Chemical Weapons Convention

2. The Chemical Weapons Convention is an international treaty that aims to prohibit the development, production, acquisition, stockpiling, possession, transfer and use of chemical weapons (Note1). It also requires the destruction of existing chemical weapons. Development, production, acquisition, possession, transfer and use of toxic chemicals and their precursors which are intended for industrial, agricultural, research, medical, and other peaceful uses are, on the other hand, permitted under the Convention, but such activities are subject to declaration and inspection requirements under the Convention. Accordingly, the Convention requires State Parties to submit annual reports on past and anticipated activities related to the chemicals listed in the three Schedules to the Convention (scheduled chemicals). Declarations on past activities are also required for certain discrete organic chemicals (Note2) which are not listed in the Schedules to the Convention (unscheduled discrete organic chemicals or UDOCs).

Major Requirements under the Convention

3. The Convention lays down detailed requirements and obligations on its State Parties. The major requirements under the Convention include :

   1. General obligations : Each State Party is required to ban the use and development of chemical weapons and to destroy any chemical weapons or related production facilities in its possession or located in any place under its jurisdiction or control;

   2. Declarations : Each State Party is required to make annual declarations on its past and anticipated production, consumption, storage, transfer facilities used in such processes and other related activities concerning scheduled chemicals (see Appendix 1 (pdf format)); and

   3. Inspection : Each State Party has the obligation to allow and facilitate inspections of relevant sites and activities within its territory by an inspection team sent by the Secretariat of the Convention.

Implementation of the Convention in Hong Kong

4. The Convention came into force on 29 April 1997. The People's Republic of China is a signatory to the Convention and the Central People's Government has extended the application of the Convention to Hong Kong under Article 153 of the Basic Law. The Hong Kong Government will implement the Convention through its own law and its own control system in accordance with the principle of "One Country, Two Systems".

5. At present, the import and export of scheduled chemicals are subject to licensing control administered by the Trade and Industry Department (the Department) under the Import and Export Ordinance and the Import and Export (Strategic Commodities) Regulations. The Weapons of Mass Destruction (Control of Provision of Services) Ordinance also prohibits the provision of services intended to assist the development, production, acquisition and stockpiling of chemical, biological and nuclear weapons. The existing controls however fall short of the full requirements of the Convention, hence the need for the new legislation.

Prohibition on Use and Development of Chemical Weapons

6. The Bill prohibits the use, development, production, possession and transfer of chemical weapons and military preparation for their use. In addition, any person who finds an article which he believes to be a chemical weapon is required to notify the Customs and Excise Department.

Permit and Notification System

7. To monitor the production and related activities pertinent to scheduled chemicals and unscheduled discrete organic chemicals, the Bill empowers the Director-General of Trade and Industry (the Director) to administer a permit and notification system. Under the system, operators of facilities which deal with scheduled chemicals are required to obtain a permit from the Director for the operation of their facilities. In addition, operators who have obtained permits to operate their facilities are required to submit to the Director periodic reports regarding past and anticipated activities in their facilities, and to keep relevant records for not less than three years.

8. Operators of facilities shall notify the Director if they produce unscheduled discrete organic chemicals exceeding specified amounts. Such operators are also required to keep relevant records for not less than three years.

9. The permit and notification system as provided for in the bill is recapitulated at Appendix 2 for easy reference. In addition, in order to enable the Government to obtain the necessary information required for making declarations under the Convention, the Bill also empowers the Director to demand from any person information that is relevant to the preparation of a declaration required under the Convention and pertinent to the chemicals controlled under the Convention.

Enforcement and Inspection

10. The Bill empowers officers of the Customs and Excise Department and officers authorized by the Commissioner for Customs and Excise (the Commissioner) to enter, search, inspect and conduct investigations on facilities as required to ensure compliance with the provisions of the Bill. The Bill also empowers the Commissioner or a magistrate to issue authorization in respect of an inspection conducted by an inspection team sent by the Secretariat of the Convention.

Impact of the Bill on local trade and industry

11. The Bill will underline Hong Kong's commitment to internationally agreed arrangements on the ban of chemical weapons and on the monitoring of activities involving sensitive chemicals. It will help ensure Hong Kong's continued access to a full range of chemicals needed for local industrial, medical, research, and trading purposes.

12. In November 1998 and June 2001, the Government conducted two rounds of survey to ascertain the likely impact of the implementation of the Bill on the local chemical industry and related sectors. The result showed that a small number of establishments have been engaged in activities involving chemicals controlled by the Convention, and hence will/may be subject to the permit, notification and other declaration requirements under the Bill.

13. Interested parties and concerned sectors of the trade and industry are invited to keep in view circulars issued by the Department from time to time concerning the legislative process of the Bill, the operation of the permit and notification system and other information on the subject. The Department will also launch in due course a dedicated website on issues relating to the implementation of the Chemical Weapons Convention in Hong Kong to provide more information about the Convention and the Bill. Announcements will be made in the Trade and Industry Department website at http://www.tid.gov.hk when this website is ready. Interested parties may also visit the website at http://www.gov.hk/pd/egazette to make reference to the Bill published in the gazette on 28 September 2001 (Gazette No. 39 Vol. 5, Legal Supplement 3).

Enquiry

14. If you have any question on the content of this circular or need any advice on the subject, you are welcome to contact Miss Annie LOONG at tel no. 2398 5670 for further information/clarification. The Department will arrange consultation session to brief concerned parties as necessary.

Yours faithfully,

(Miss Angela Liu)

for Director-General of Trade and Industry

Note 1: "Chemical weapons", as defined under the Convention, includes any toxic chemicals and their precursors except where intended for purposes not prohibited under the Convention; munitions and devices specifically designed to cause death or other harm through the toxic properties of toxic chemicals and any equipment specifically designed for use directly in connection with the employment of these munitions and devices.

Note 2: "Discrete Organic Chemical" is defined as any chemical belonging to the class of chemical compounds consisting of all compounds of carbon except for its oxides, sulfides and metal carbonates, identifiable by chemical name, by structural formula, if known, and by Chemical Abstracts Service (CAS) registry number, if assigned.