The Export Control Order 2008

JurisdictionUK Non-devolved
CitationSI 2008/3231

2008 No. 3231

Customs

The Export Control Order 2008

Made 15th December 2008

Laid before Parliament 17th December 2008

Coming into force 6th April 2009

The Secretary of State is a Minister designated for the purposes of section 2(2) of the European Communities Act 19721in relation to—

(a) measures relating to trade in dual-use items, including the transmission of software or technology in intangible form2; and

(b) matters relating to trade in certain goods, including technical assistance, which could be used for capital punishment, torture or other cruel, inhuman or degrading treatment or punishment3.

It appears to the Secretary of State that it is expedient for the references in this Order to Council Regulation (EC) No 1334/20004, Council Regulation (EC) No 1236/20055, Article 3 of Council Regulation (EEC) No 2913/926and Article 3 of Council Regulation (EC) No 450/20087to be construed as references to those instruments and provisions as amended from time to time.

To the extent that this Order regulates any of the activities listed in section 8(1) of the Export Control Act 20028, the Secretary of State, having considered the reasons for the relevant controls and the need to respect the freedom to carry on the relevant activities, has determined that such regulation is necessary in the circumstances prevailing at the time of this Order.

The Secretary of State, in exercise of the powers conferred by section 2(2) of the European Communities Act 19729, by paragraph 1A of Schedule 2 to that Act10and by sections 1, 2, 3, 4, 5 and 7 of the Export Control Act 200211, makes the following Order:

1 INTRODUCTORY

PART 1

INTRODUCTORY

S-1 Citation and commencement

Citation and commencement

1. This Order may be cited as the Export Control Order 2008 and shall come into force on 6th April 2009.

S-2 Interpretation

Interpretation

2.—(1) In this Order, the following expressions have the meanings given below, save where an expression is also defined in a Schedule where it has, for the purposes of that Schedule, that meaning—

“aircraft” means a fixed wing, swivel wing, rotary wing, tilt rotor or tilt wing vehicle or helicopter;

“category A goods” means goods specified in Part 1 of Schedule 1;

“category B goods” means goods specified in Part 2 of Schedule 1;

“category C goods” means—

(a) military goods other than goods specified in Schedule 1;

(b) portable devices for the purpose of riot control or self-protection by the administration or dissemination of an incapacitating chemical substance;

(c) pelargonic acid vanillylamide (PAVA) (CAS 2444-46-4);

(d) oleoresin capsicum (OC) (CAS 8023-77-6);

“CEMA” means the Customs and Excise Management Act 197912;

“the Commissioners” means the Commissioners for Her Majesty’s Revenue and Customs;

“the Community General Export Authorisation” means the authorisation constituted by Article 6(1) (rules about authorisations) of and Annex II to the dual-use Regulation;

“competent authority” means the Secretary of State or any other authority that is from time to time empowered to grant authorisations under the dual-use Regulation;

“contract promotion activity” means any act calculated to promote the arrangement or negotiation of a contract for the acquisition, disposal or movement of goods or any agreement to do such an act;

“country” includes territory;

“the customs and excise Acts” has the same meaning as in section 1 of CEMA;

“the customs territory” means the customs territory described in Article 3 of Council Regulation (EEC) No 2913/92as amended from time to time until its repeal by Council Regulation (EC) No 450/2008and then the customs territory described in Article 3 of the latter Regulation as amended from time to time;

“dual-use” in relation to goods, software or technology, means usable for both civil and military purposes;

“the dual-use Regulation” means Council Regulation (EC) No 1334/2000as amended from time to time;

“embargoed destination” means a country listed in Part 1 or 2 of Schedule 4;

“exportation” shall be construed as follows—

(a) unless the context otherwise requires, it only includes removal from the United Kingdom to a destination outside the United Kingdom and the Isle of Man;

(b) it includes shipment as stores;

(c) in relation to a vessel, vehicle, submersible vehicle or aircraft, it includes taking it out of the United Kingdom, notwithstanding that it is conveying goods or passengers and whether or not it is moving under its own power

and cognate expressions shall be construed accordingly;

“the firearms Directive” means Council Directive 91/477/EEC13;

“general” in relation to a licence, means not granted to a particular person but available for use generally;

“goods subject to trade controls” means goods that are category A goods, category B goods or category C goods.

“importation” in relation to a vessel, vehicle, submersible vehicle or aircraft means taking it into the United Kingdom, notwithstanding that it is conveying goods or passengers and whether or not it is moving under its own power and cognate expressions shall be construed accordingly;

“information security items” means goods, software and technology specified in Part 2 of Category 5 in Annex I to the dual-use Regulation;

“licence” except in article 45(2), means a UK licence or an authorisation granted under the dual-use Regulation or the torture Regulation;

“licence user” means a person who is registered under article 28 to use a general licence or who is entitled to use a general licence without registration owing to the terms of that general licence;

“microprogramme” means a sequence of elementary instructions, maintained in a special storage, the execution of which is initiated by the introduction of its reference instruction into an instruction register;

“military” in relation to goods, software and technology, means listed in Schedule 2;

“payment” includes a payment in money or money’s worth or in kind whether referable to a particular act or made from time to time but does not include a payment made by way of wages or salary;

“programme” means a sequence of instructions to carry out a process in, or convertible into, a form executable by an electronic computer;

“proper” has the same meaning as in CEMA;

“in the public domain” means available without restriction upon further dissemination (no account being taken of restrictions arising solely from copyright);

“scheduled journey” means one of a series of journeys which are undertaken between the same two places and which together amount to a systematic service operated in such a manner that its benefits are available to members of the public from time to time seeking to take advantage of it;

“shipment” (and cognate expressions) and “stores” have the same meanings as in CEMA;

“software” means one or more programmes or microprogrammes fixed in any tangible medium of expression;

“surface effect vehicle” means any air cushion vehicle (whether side wall or skirted) and any vehicle using the wing-in-ground effect for positive lift;

“technical assistance” means any technical support related to repairs, development, manufacture, assembly, testing, use, maintenance or any other technical service;

“technology” means information (including but not limited to information comprised in software and documents such as blueprints, manuals, diagrams and designs) that is capable of use in connection with the development, production or use of any goods;

“a third country” means any country that is not the United Kingdom or the Isle of Man except that, for the purposes of Part 4 of this Order, goods that are goods in transit are considered to be located in a third country;

“the torture Regulation” means Council Regulation (EC) No 1236/2005as amended from time to time;

“transfer”, in relation to software or technology, means transfer by electronic or non-electronic means (or any combination of electronic and non-electronic means) from a person or place within the United Kingdom to a person or place outside the United Kingdom, except in articles 10 and 11 where the limitations as to the origin and destination of the transfer do not apply, and cognate expressions shall be construed accordingly;

“transfer by electronic means”, in relation to software or technology, means transmission by facsimile, telephone or other electronic media (except that oral transmission of technology by telephone is included only where the technology is contained in a document the relevant part of which is read out over the telephone, or is described over the telephone in such a way as to achieve substantially the same result as if it had been so read);

“transfer by non-electronic means”, in relation to software or technology, means disclosure of software or technology by any means (or combination of means), including oral communication, other than as the exportation of goods or the transfer by electronic means;

“in transit” means imported into the United Kingdom for transit or transhipment;

“transit or transhipment”, in relation to goods, means transit through the United Kingdom or transhipment with a view to re-exportation of the goods or transhipment of the goods for use as stores;

“UK controlled” in relation to dual-use goods, software and technology, means listed in Schedule 3;

“UK licence” means a licence in writing granted by the Secretary of State that authorises an act or acts that would otherwise be prohibited by this Order;

“vehicle” includes a railway carriage;

“vessel” includes any ship, surface effect vehicle, vessel of small waterplane area or hydrofoil, and the hull or part of the hull of a vessel;

“WMD purposes” means use in connection with the development, production, handling, operation, maintenance, storage, detection, identification or dissemination of chemical, biological or nuclear weapons or other nuclear explosive devices, or the development, production, maintenance or storage of missiles capable of...

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