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Ref :TRA CR 1015/9/7
6 August 2003
(Main text and Annex C updated on 5 October 2015)
Strategic Trade Controls Circular No. 14/03
Enactment of the Chemical Weapons (Convention) Ordinance
I. Purpose of this Circular
This circular aims to set out the major features of the newly enacted Chemical Weapons (Convention) Ordinance ("the Ordinance") which have impacts on the local industries and facilities.
II. Background of the Ordinance
2. The Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on their Destruction ("the CWC") is an international treaty which aims to ban the use of all chemical weapons. The People's Republic of China ("the PRC"), which is a signatory to the CWC, has ratified the CWC. Under the CWC, each State Party which is a signatory to it has to implement its requirements anywhere on its territory or in any place under its jurisdiction. The Central People's Government of the PRC has extended the application of the CWC to the Hong Kong Special Administrative Region ("the HKSAR") under Article 153 of the Basic Law. Under the CWC, each State Party has the right, subject to the provisions of the CWC, to develop, produce, acquire, retain, transfer and use toxic chemicals and their precursors for purposes not prohibited under the CWC. Also, each State Party should adopt necessary measures to ensure that toxic chemicals and their precursors are only developed, produced, acquired, retained, transferred, or used for purposes not prohibited by the CWC.
3. The Trade and Industry Department ("TID") issued a circular in October 2001 to inform the industry that the HKSAR Government had introduced a Bill, the Chemical Weapons (Convention) Bill, into the Legislative Council with a view to implementing the CWC. The Chemical Weapons (Convention) Bill was passed by the Legislative Council on 2 July 2003 and published in the Gazette on 11 July 2003. The Ordinance will commence operation on a date to be appointed by the Secretary for Commerce, Industry and Technology. TID will issue a circular to further inform the industry and the general public of the commencement of the Ordinance. To prepare for the implementation of the Ordinance, a new and dedicated website, the Chemical Weapons (Convention) Ordinance Website (http://www.cwc.tid.gov.hk), will be launched in the near future.
III. Major Features and Obligations
(a) Initial Declaration
4. According to the CWC, a State Party to the CWC is required to make an initial declaration to the Organization for the Prohibition of Chemical Weapons (OPCW) established under the CWC no later than 30 days after the Convention enters into force for that State Party. The initial declaration will cover information about the State Party and activities of facilities in the State Party related to the chemicals under the three Schedules to the CWC in the past three years. As the Central People's Government of the PRC has extended the application of the CWC to the HKSAR, an initial declaration has to be made within 30 days after the commencement of the Ordinance in the HKSAR. The initial declaration will be the first and foremost task that the HKSAR Government has to accomplish upon the commencement of the Ordinance. To fulfil the task, the HKSAR Government will collect relevant information from the industry and facilities for compiling the initial declaration. In view of the very tight schedule provided under the CWC for making the initial declaration, i.e. 30 days after the commencement of the Ordinance, we would like to take this opportunity to alert the industry and facilities concerned to take note of this requirement and make early preparation for providing the relevant information in order to pave the way for the commencement of the Ordinance. TID will issue a separate circular in the very near future to inform the industry of the details.
5. The Ordinance imposes a permit requirement, specifies the circumstances under which a permit to operate a facility is required and empowers the Director-General of Trade and Industry ("the Director") to grant a permit. Specifically, an operator1 of a facility2 engaged or would be engaged in specified activities with chemicals included in the Schedules to the Ordinance is required to obtain a permit from the Director to operate the facility. Operators of facilities granted with permits are required to provide to the Director on an annual basis information about past and anticipated activities at their facilities. Annex A provides more details about the permit requirement, including obligations of permit holders.
(c) Notification System
(b) Permit System
6. The Ordinance imposes a notification requirement on operators of facilities involve in the production of Unscheduled Discrete Organic Chemicals, that is, discrete organic chemicals3 not listed in the Schedules to the Ordinance, and specifies the circumstances under which such operators should make notifications to the Director. Annex B (pdf format) provides more details about the notification requirement.
IV. Record Keeping Requirement
7. The Ordinance requires operators of facilities who have been granted with permit and/or are subject to the notification requirement to keep records for not less than 3 years after the year to which the records relate. Such records may include those related to the facility, including each of the plant of the facility, the chemicals dealt with by the facility, the purposes to which the chemicals are put and other information relevant to declarations to be made to the OPCW. More details about the record keeping requirement will be announced in due course.
V. Requirement to Provide Information
8. The Ordinance empowers the Director to issue a notice in writing to require any person to give information if the Director has reasonable grounds to believe that the person is capable of giving information relevant to a declaration required to be given to the OPCW.
VI. Inspection and Enforcement
9. Facilities granted with permits or subject to the notification requirement would be subject to checks and inspection by the Customs and Excise Department ("C&ED"). These checks are mainly aimed at verifying and ensuring the accuracy of the information related to permits and the material particulars in any reports submitted to the Director. Such checks and inspection may be conducted as and when necessary and at short notice or without prior notice by C&ED officers. The inspection teams of the OPCW may also conduct inspection of facilities in order to verify any information passed to it about the facilities. Operators of the facilities are required to provide all requisite records for checking/inspection and render the necessary assistance and cooperation to the officers concerned throughout the entire period of the checks/inspection. As inspection notifications, in particular those from the OPCW, are likely to be received at very short notice, operators of facilities are advised to properly keep and organize all relevant records so that they can be easily retrieved within a short period of time for checking by the inspection teams.
VII. Classification Enquiry
10. An operator who has doubt on whether a chemical handled by his facility falls under Schedule 1, 2 or 3 to the Ordinance or is an Unscheduled Discrete Organic Chemical can make enquiry to TID. A classification request could be made by completing the Classification Enquiry Form at Annex C (pdf format) and lodged by fax, by mail or in person at the Customer Service Centre of Strategic Trade Controls Branch at Room 1619, 16/F, Trade and Industry Tower, 3 Concorde Road, Kowloon City, Hong Kong.
VIII. Important Notes
11. The Ordinance specifies the acts which constitute offences under the Ordinance and the penalties involved. Such offences include violation of the permit and notification requirements specified in the Ordinance. The maximum penalties for these offences on conviction range from a fine at level 6 (i.e. $100,000) to $500,000 and imprisonment for 1 year to 5 years. In addition to the penalties above, TID may take administrative actions against parties committing the offences.
12. TID at all times reserves the right to release information furnished by permit holders, operators of facilities of Unscheduled Discrete Organic Chemicals which are subject to the notification requirement, and any person who is required by the Director for giving information, to third parties for the purposes stated in Section 28(2) of the Ordinance. Such information may include any particulars of the facilities concerned and their operators as well as the annual declarations/notifications relating to the facilities concerned.
13. As a reminder, all CWC scheduled chemicals are currently subject to the import and export restrictions laid down in the Import and Export Ordinance, Cap. 60, Laws of Hong Kong and the Import and Export (Strategic Commodities) Regulations (Cap. 60 sub. leg.). In other words, import, export and transit of CWC scheduled chemicals must be covered by licences issued by the Director in accordance with the provisions of Import and Export Ordinance and the Import and Export (Strategic Commodities) Regulations. For more details, please refer to the circular under the title "Import and Export Control on Chemicals, Biological Agents and Dual-Use Facilities and Equipment Related to the Manufacture of Chemical and Biological Weapons" issued by the TID in March 2001.
14. If you have any questions on the above, please call the undersigned or Ms Annie Loong at tel. no. 2398 5670.
(Ms Angela Liu)
for Director-General of Trade and Industry
For online access to other circulars and information, please visit the Strategic Commodities Control System Website at http://www.stc.tid.gov.hk
- An operator, in relation to a facility, means the person or persons (whether an individual, a body corporate, or otherwise, or any combination thereof) having responsibility, as distinct from day-to-day management, in relation to operations carried on at the facility, and includes the legal personal representative, administrator and other successor in title of any such person.
- "Facility" means any "plant site", "plant" or "unit":
- "Plant Site" means the local integration of one or more plants, with any intermediate administrative levels, which are under one operational control, including any -
- administration and other offices;
- repair and maintenance shops;
- medical centre;
- central analytical laboratory;
- research and development laboratories;
- central effluent and waste treatment area; and
- warehouse storage.
- "Plant" means a relatively self-contained area, structure or building containing one or more units with auxiliary and associated infrastructure, including any -
- small administrative section;
- storage or handling areas for feedstock and products;
- effluent or waste handling or treatment area;
- control or analytical laboratory;
- first aid service or related medical section; and
- records associated with the movement into, around and from the area, of declared chemicals and their feedstock or product chemicals formed from them, as appropriate.
- "Unit" means the combination of those items of equipment, including vessels and vessel set up, necessary for the production, processing or consumption of a chemical.
"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; and identifiable by chemical name; structural formula, if known; and Chemical Abstracts Service (CAS) registry number, if assigned.