Strategic Trade Controls Circular No. 16/04

Import and Export Control on Chemicals,Biological Agents and Dual-Use Facilities and Equipment
Related to the Manufacture of Chemical and Biological Weapons

          This circular serves to update traders on the licensing requirement for certain strategic commodities including chemicals, biological agents and dual-use facilities and equipment related to the manufacture of chemical and biological weapons. The Strategic Trade Controls Circular No. 2/01 dated 1 March 2001 on the same subject is hereby superseded.

I. THE LEGAL BASIS

2.        Under Import and Export Ordinance, Chapter 60, Laws of Hong Kong and its subsidiary legislation i.e. Import and Export (Strategic Commodities) Regulations ("the Regulations"), import and export of certain chemicals, biological agents as well as dual-use facilities and equipment related to the manufacture of chemical and biological weapons, and transit of articles which are for a use relating to chemical and biological weapons, must be covered by valid licences issued by the Director-General of Trade and Industry. These products are listed in Schedules 1, 2, 3 and 4 to the Regulations and are regarded as strategic commodities and therefore subject to licensing requirement.

II. SCOPE OF CONTROL

3.       Schedule 1 to the Regulations comprises two lists of products: the Dual-use Goods List and the Munitions List. The two lists have included the items under the control lists of two international control regimes - the Australia Group (AG) which aims to minimize the risk of chemical and biological weapons proliferation; and the Chemical Weapons Convention (CWC) which aims to prohibit the development, production, stockpiling and use of chemical weapons and on their destruction. Such items mainly fall under the following categories:

1. Chemicals (Annex A) (pdf format)-
   Dual-use Goods List: Categories 1C350 and 1C450
   Munitions List: Categories ML7(b), ML7(c)
2. Biological Agents (Annex B) (pdf format)-
   Dual-use Goods List: Categories 1C351, 1C353 and 1C354
3. Dual-use Facilities and Equipment related to
   Chemical and Biological Weapons (Annex C) (pdf format) -
   Dual-use Goods List: Categories 2B350, 2B351, 2B352 and 9A350

4.       Schedule 2 to the Regulations contains products which, in addition to being subject to import and export controls, are also controlled even if they are in transit through Hong Kong (see paragraphs 15 - 16). Schedule 3 and 4 are items and activities subject to end-use controls (see paragraph 17).
 

III. LICENSING PROCEDURES

A. Application Forms

Paper Applications

5.        Licence applications for import and export of strategic commodities listed in Annexes A (pdf format), B (pdf format) and C  (pdf format) should be made on Import Licence (Strategic Commodities) Application Form [TID 501] and Export Licence (Strategic Commodities) Application Form [TID 502]. These paper forms are available free of charge at the Integrated Customer Service Centre (at Room 1324, 13/F, Trade and Industry Tower, 3 Concorde Road, Kowloon City, Hong Kong). They can also be downloaded from the Strategic Commodities Control System Website ("the SC Website") at http://www.stc.tid.gov.hk. Specimen of completed import and export licence applications are at Annexes D (pdf format) and E (pdf format) respectively. Licence applications should be submitted together with the required supporting documents (see paragraphs 8 - 9) to the Integrated Customer Service Centre.


Electronic Applications (E-Applications)


6.        Import and export licence applications can also be made electronically ("E-Applications"). The E-Applications can be made through companies' E-Accounts in the SC Website under the programme of "Apply for Import Licence" or "Apply for Export Licence" provided at the E-Application menu (http://www.stc.tid.gov.hk > Login Your E-Account > E-Applications > Import/Export Licence Applications > Apply for Import/Export Licence). E-Applicants should provide all the required supporting documents (see paragraphs 8 - 9) and then scan, upload and submit them together with the related E-Import/Export Licence Applications. Alternatively, the supporting documents can be submitted to the Integrated Customer Service Centre in person or by fax. However, please note that scanned or faxed copies of the supporting documents only serve to facilitate processing of the applications. The original of the signed Chemical End-User Undertaking, End-User Statement or Chemical Trader Undertaking are required to be submitted to the Department in all circumstances. The Department will withhold approval and issuance of the licences unless and until these original signed supporting documents are received. Thus, after making the E-Applications, applicants are advised to deliver the original signed documents to the Department as soon as possible.

7.        To submit E-Applications, companies are required to complete a special registration with the Department in advance. Details could be referred to Strategic Trade Controls Circular No. 3/04, "Introduction of "E-Applications" for Import/Export Licences and other Documents in Strategic Commodities Control System Website" or to the specific sections in the SC Website : http://www.stc.tid.gov.hk/english/circular_pub/files/open_e-account.htm
 

B. Declaration and Supporting Documents

8.        In addition to declaring basic application particulars accurately on the application form, the following information/documents will also be required to support a licence application:

1. the name and full address of the ultimate consignee and/or end-user;
2. the specific end-use of the goods concerned;
3. essential details of the foreign export/re-export/import licences if the shipment is supported by an export/re-export authorization issued by the supplier or originating country/place, and/or import authorization issued by the importing country/place; and
4. supporting documents include -
   1. a copy of the export/re-export authorization issued by the supplying or originating country/place which give explicit approval to export/re-export the products, and/or a copy of an International Import Certificate (IIC) or import authorization issued by the importing or destination country/place, which give explicit approval to import the products. If the foreign licences are issued in languages other than English or Chinese, the applicant should provide a translated version (either in English or Chinese) of the licence prepared by a registered translation company in Hong Kong or certified correct by the relevant embassy in Hong Kong;
   2. original Chemical End-User Undertaking covering chemicals listed in Annex A (pdf format) (see sample of the Undertaking in Annex F (fillable pdf format) for import and in Annex G (fillable pdf format) for export) ; OR End-User Statement covering non-chemical goods listed in Annexes B (pdf format) and C (pdf format) (see sample of the Statement in Annex H (fillable pdf format) for import and in Annex I (fillable pdf format) for export);
   3. data sheet giving full composition, or technical details as appropriate, of the product under application;
   4. documents in support of the business nature and production situation of the applicant/consignee/end-user.

5. original Chemical Trader Undertaking (Annex J) (fillable pdf format) duly completed by a local chemical trader (i.e. a trader who is not an end-user of the chemicals but obtains the chemicals through an importer for resale to other bona fide local end-users).

IV. LICENSING ARRANGEMENT FOR CHEMICALS CONTROLLED UNDER THE CHEMICAL WEAPONS CONVENTION

10.        Certain chemicals listed in Annex A (pdf format) are controlled under the Chemical Weapons Convention (CWC) in three different Schedules under the Convention. They are marked with "Schedule 1", "Schedule 2" or "Schedule 3" in Annex A. In this regard, when traders apply for import licences or export licences covering chemicals controlled under the CWC, the following conditions, which are laid down in the Convention, must be complied with in addition to the licensing procedures set out in paragraphs 5 - 9:

1. Schedule 1 and Schedule 2 chemicals, except for Schedule 2 chemicals which fulfill all the conditions stated in paragraph 10(e) below, may only be imported from/exported to a CWC State Party and only for purposes permitted by the Convention including, for example, research, medical or pharmaceutical uses. The updated list of CWC State Parties can be found in CWC official website at http://www.opcw.org;
2. Re-export of Schedule 1 chemicals to a third country is prohibited;
3. Properly completed applications for the import or export of Schedule 1 chemicals, except for Saxitoxin as mentioned in paragraph 10(d) below, must be received by the Trade and Industry Department in not less than 45 days before the shipment date;
4. The 45-day time frame set out in paragraph 10(c) above does not apply to import and export of 5 milligrams or less of Saxitoxin (CAS Registry no. 35523-89-8) which is for medical/diagnosis purposes. Traders can submit the licence applications under the normal time frame, but they are required to notify the Trade and Industry Department of the details of the actual arrival/departure date of such shipments. In this regard, traders have to submit an undertaking (Annex K) (fillable pdf format) agreeing to notify the Trade and Industry Department of details of the exports/imports within one clear working day after the actual arrival/departure date of the shipment concerned. Such notifications, which should be made on notification form (Annex L) (fillable pdf format), should be submitted to the Trade and Industry Department together with copy of documents showing details on the actual importation or exportation of the consignment concerned. The documents required may include bill of lading showing the date of shipment, the consignee, the product description and the quantity or other relevant documents such as invoice or packing list which contain the above information;
5. Notwithstanding the restriction as set out in paragraph 10(a) above, Schedule 2 chemicals can be imported from or exported to States which are not parties to the CWC provided that the products concerned -
   1. ​ contain 1% or less of a Schedule 2A or 2A* chemical;
   2. contain 10% or less of a Schedule 2B chemical; and
   3. are identified as consumer goods packaged for retail sale for personal use or packaged for individual use;
6. Applications to export Schedule 2 [see paragraph 10(e) above] and Schedule 3 chemicals to a country that is not a party to the CWC need to provide end-use information and written assurances issued by the responsible authorities in the receiving country containing the following -
   1. the types and quantities of chemicals involved;
   2. their end-use(s);
   3. the name(s) and address(es) of the end-user(s);
   4. confirmation that the chemicals will only be used for purposes not prohibited by the CWC; and
   5. confirmation that the chemicals will not be re-transferred.

11.       The forms relevant to import/export of CWC scheduled chemicals are available free of charge at the Integrated Customer Service Centre (at Room 1324, 13/F, Trade and Industry Tower). They can also be downloaded from the Chemical Weapons (Convention) Ordinance Website ("the CWC Website") at http://www.cwc.tid.gov.hk. Please visit the CWC Website for details and the latest updates of the import/export licensing requirement for chemicals as well as the Chemical Permit and Notification System in relation to activities involving chemicals subject to the Chemical Weapons (Convention) Ordinance.
 

V. ISSUANCE OF LICENCE

12.        If licence applications are approved, regardless of whether the applications are made in paper or electronic format, only paper licences will be issued. Under normal circumstances, applications duly completed and supported by all the documents required will be processed within 2.5 clear working days after the date of submission of the licence applications. However, for cases with complications or if additional documents/information are necessary, longer time may be required to process the applications. Other government departments may also be consulted as and when necessary on a case-by-case basis. To check whether their applications have been processed and are ready for collection, applicants can visit the SC Website. Applicants are advised to submit their applications well in advance of the shipments.

13.       To collect the approved licence copies, paper licence applicants can present the receipt issued to them upon licence submission to the Integrated Customer Service Centre (at Room 1324, 13/F, Trade and Industry Department Tower). For applicants of electronic licence applications, they can follow the instructions upon successful submission of E-Applications to print out the receipt for subsequent collection of the approved licences at the Integrated Customer Service Centre. Approved import and export licences are valid for six months and three months respectively.

VI. LICENCE CONDITIONS

14.       At the time of receiving the approved licences, applicants should read the part, "Licence Conditions", regarding the use of the licence. One of the special licence conditions for licences covering products for local resale/transfer/disposal is "Prior notice to and approval from the Department may be required if the goods are intended for further resale/transfer/disposal". Licensees imposed with this condition should submit to the Integrated Customer Service Centre designated form SC047 (Annex M) (fillable pdf format) to request for approval of resale/transfer/disposal of their products. Supporting documents including original trader/end-user undertakings completed by the proposed recipient and end-user, valid export permit/authorisation issued by the originating or exporting country/place of the product giving approval to the proposed resale/transfer, must also be submitted. The Department will give due consideration to the application and notify the licensee in writing of its decision. Only after receipt of Trade and Industry Department's written approval should the licensees proceed with the resale/transfer/disposal of the goods. Otherwise, the licensee would have breached the above licence condition.

VII. ARTICLES IN TRANSIT

15.     When applying for licences for goods in transit, apart from adhering to the requirements as stated in paragraphs 5 - 10 as appropriate, applicants should also:

1. submit both import and export licence applications together to the Trade and Industry Department; and
2. declare on the licence applications that the goods are in transit, and state the transport mode, name of the vessel or flight number, and expected arrival and departure dates. For E-Applicants, tailor-made declaration for this purpose is available for selection at Part I "Preparation of Declaration Lists" of the E-Import Licence Application menu.

VIII. END-USE CONTROLS

17.      The Regulations also impose licensing requirement on articles specified in Schedule 3 to the Regulations (Annex N) (pdf format), or any technological document containing information relating to any such article:

1. if the importer/exporter knows that the article or document is intended or likely to be used in any activity related to nuclear, chemical or biological weapons or missiles capable of delivering them as specified in Schedule 4 to the Regulations (Annex O) (pdf format); or
2. if the importer/exporter has grounds for suspecting that the article or document may be used in any activity specified in Schedule 4.

IX.REMINDERS

18.      Section 6A of the Import and Export Ordinance stipulates that no person shall import or export any article specified in the Schedules to the Regulations except under and in accordance with a licence issued by the Director-General of Trade and Industry. Any person who contravenes this provision shall be guilty of an offence and is liable:

1. on summary conviction to a fine of HK$500,000 and to imprisonment for two years; and
2. on conviction on indictment to an unlimited fine and to imprisonment for seven years.

In addition to prosecution, the Trade and Industry Department may impose administrative actions against these persons. Such administrative actions may involve but shall not necessarily be confined to, suspension of a licence, refusal to issue a licence, debarment of all licensing facilities, etc.
 

X. ENQUIRIES

19.        Please contact the following officers for enquiries concerning the licensing procedures for import and export of chemicals, biological agents and dual-use facilities and equipment related to the manufacture of chemical and biological weapons:

Licensing Officer
Tel No. 2398 5625

Assistant Trade Officer
Tel No. 2398 5670

For specific technical questions on whether their goods are classified as strategic commodities listed in Annexes A (pdf format), B (pdf format) and C (pdf format), please call the Classification Section of Strategic Trade Controls Branch at 2398 5587. Enquiry could also be sent by fax to 2396 3070 or by email to stc@tid.gov.hk.

 

Strategic Trade Controls Branch
Trade and Industry Department

Note : These Schedules follow the grouping under the CWC which differentiates chemicals according to their toxicity and potential use. They should not be mixed up with Schedules 1 - 4 under the Import and Export (Strategic Commodities) Regulations referred in paragraphs 2 - 4 in this circular.