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Ukraine: Full-Text: Export Control: Presidential Decree No. 117/98

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Ukraine: Legislation

To return to the main Ukrainian export controls legislation entry, see the Export Control Legislation file.

The English translation of this decree was taken from the Stockholm International Peace Research Institute (SIPRI) Web Site. The Center for Nonproliferation Studies does not take responsibility for the accuracy of the translation.

APPROVED
By the Decree by the President of Ukraine,
dated February 13, 1998 #117/98

PROVISIONS About the State Export Control in Ukraine

General provisions

1. These Provisions establish procedures for the implementation of the state control over international transfers of armament, military and special engineering, certain sorts of raw stuff, materials, equipment and technologies, which can be used to create those, with the aim to ensure national security and to keep international commitments by Ukraine with regard to non-proliferation of weapons of mass destruction and their means of delivery and restriction of conventional arms transfers.

2. For these Provisions purposes the following terms are used:

1) state export control – a complex of activities, which are implemented by state bodies with regard to ensuring of the state control over the international transfers of goods, to be a subject to control, their use by juridical and natural persons in line with the international obligations by Ukraine and its national security interests;

2) goods – any products, technologies, services or information, that combined or separately to be a subject to the state export control;

3) products, designated for military purposes – an armament, ammunitions, military and special engineering, special parts for their production, explosives, as well, as materials and equipment, designated specially for development, production or application of those products; services in the fields of design, development, construction, production, assembling, testing, repair, maintenance, modification, exploitation, demilitarization, elimination, sale, procurement or use of products or technologies, designated for military purposes, provision of intermediate services, technical data and technical assistance, provided for foreign juridical and natural persons in Ukraine or beyond its border; a special information in any form (excluding an information, published in open sources), required for development, production or use of products, designated for military purposes in the form of projects, plans, drawings and their copies, schemes, diagrams, models, formulas, specifications, software, manuals, instructions in hard copies or on other material objects; implementation of instructional advice, exercising of events regarding improvement of qualification, training, practical mastering of methods of work, provision of consultations, which combined or separately to be a subject to the state export control;

4) dual-use goods – certain sorts of products, equipment, materials, software and technologies, which besides civilian application, could be used while development, production or use of armament, military or special engineering and to be a subject to the state export control;

5) international transfers of goods – export (re-export), import of goods to be a subject to control, their transit via the territory of Ukraine, as well, as temporary exportation beyond the border of Ukraine or temporary importation to the territory of Ukraine;

6) export – sale or transfer of goods to be a subject to control in line with other legal basics to the foreign agents of economic activity and their exportation beyond the customs border of Ukraine or without it, including re-export of goods from the customs territory of Ukraine, comprising:
a) transfer of goods in Ukraine to an embassy or a representative of any juridical person of a foreign state, a foreigner or a person without citizenship;
b) transfer in Ukraine or beyond its border management (control) over goods to juridical person of a foreign state, his representative or foreigner, including that via communication channels;
c) provision of services, designated for military purposes, beyond the territory of Ukraine to juridical or natural person of a foreign state or a person without citizenship;
d) actual shipment of goods with the aim of their further transfer or displacement beyond the border of Ukraine;

7) import – purchase or receiving of goods to be a subject to control in line with other legal basics from the foreign agents of economic activity and their importation to the territory of Ukraine, including receiving of those by a representative of any juridical person of a foreign state, a foreigner or a person without citizenship on the territory of Ukraine;

8) re-export - sale of goods to be a subject to control, which prior have been imported on the territory of Ukraine, to the foreign agents of economic activity and exportation beyond the border of Ukraine or sale of goods, have been exported from Ukraine, to the third states;

9) transit – displacement of goods to be a subject to control via the territory of Ukraine without any use on its territory;

10) temporary exportation of goods to be a subject to control beyond the territory of Ukraine (hereinafter referring as temporary exportation of goods) – exportation of goods from the territory of Ukraine to a foreign state with an obligatory return of those to Ukraine;

11) temporary importation of goods to be a subject to control to the territory of Ukraine (hereinafter referring as temporary importation of goods) – importation of goods to the territory of Ukraine from a foreign state with an obligatory return to the state, from which those have been imported;

3. International transfers of goods to be implemented exclusively under the state control, which ensures their compliance with national security interests, foreign and defence policies of Ukraine.

4. Export of certain categories of goods, designated for military purposes, and those of dual use is prohibited to the states, which are a subject to the legally binding by the UN embargoes on those goods deliveries.

5. It is prohibited to implement international transfers of nuclear, biological and chemical weapons, materials, appliances and technologies, specially designated to create those, transfers of goods, if their implementation contradicts with the international obligations by Ukraine, national security interests aims of fight against terrorism and maintaining of mutually beneficial cooperation with the members of the international community in line with the universally recognised principles and norms of international law, as well, as in the absence of appropriate guaranties with regard to the final use of goods.

6. These Provisions are valid for export (re-export), import, transit and any other activities, related with international transfers of goods, attributed to the List of goods, international transfers of which to be a subject to the export control, including provision of intermediary services, production, scientific-research and other cooperation, display of exhibits on international exhibitions and fairs with the purpose to advertise, conduct of tests, coastal and border trade and operations of goods exchange, which are conducted in line with the existing procedures by the agents of external economic activity of Ukraine (hereinafter referring as referring as the agents of economic activity).

7. These Provisions are not valid for the following:

1) transfers of armament and military engineering in connection with events, conducted by the Armed Forces and other military formations of Ukraine beyond its territory or by military formations of foreign states on the territory of Ukraine in the framework of the international agreements;

2) exportation, importation of service-authorised weapons by military servicemen, representatives of interior affairs bodies and other persons, who are authorised to carry arms according to the current legislation.

8. Procedures for the state control over the implementation of intergovernmental export deliveries of goods with the purpose to provide military assistance in line with conditions of the international agreements of Ukraine to be defined by the Cabinet of Ministers of Ukraine.

A decision with regard to possibility to transfer goods beyond the territory of Ukraine, related with provision of foreign states with emergency assistance, to be made by the National Security and Defense Council.

9. The State Service for Export Control is a specially authorized body on issues of the state export control.

International transfers of goods, to be a subject to the state export control

12. International transfers of the following categories of goods to be a subject to the state export control:

1) goods, which concern to the nuclear activity and can be used to create nuclear weapons;
2) goods, which can be used to create chemical, bacteriological (biological) and toxin weapons;
3) products of missile engineering, equipment, materials and technologies, including those after certain modification, which are used or can be used to create missile weapons;
4) goods, designated for military purposes;
5) dual-use goods.

Procedures for the implementation of the export control over international transfers of mentioned above categories of goods to be defined by the appropriate provisions, to be a subject to approval by the Cabinet of Ministers of Ukraine.

13. The State Service for Export Control of Ukraine along with interested ministries and other central bodies of executive power develops the Lists of goods, international transfers of which, to be a subject to the export control. Those Lists after prior examination by the Commission for Policy of Export Control and Military-Technical Cooperation with Foreign States, to be a subject to approval by the Cabinet of Ministers of Ukraine and to be revised at least twice a year.

14. The agent of external economic activity is obliged to address the State Service for Export Control in order to obtain a permission to implement export of goods or explanations in case he gets to know about possibility to use goods to create weapons of mass destruction, their means of delivery or conventional weapons, regardless those goods are not attributed to the Lists of goods.

General procedures for exercising of the state control over international transfers of goods

15. Procedures for exercising of the state export control stipulate the following:

1) granting of authorisation to implement international transfers of goods defined by the current legislation;
2) consideration and resolving by the export control bodies of issues about possibility to conduct negotiations, related with conclusion of the external economic agreements (contracts);
3) concordance of drafts of the international agreements of Ukraine, with regard to international transfers of goods to be a subject to control;
4) consideration and resolving of issues regarding possibility to implement international transfers of goods in every separate case;
5) issuing state guaranties (international import certificates of Ukraine) regarding use of imported goods;
6) establishment of exclusive conditions for export of declared goods;
7) return of goods to Ukraine by the exporter, in case there is a basis to consider, that final use of those goods is in contradiction with the substance of the permission and materials of the request, basing on which it has been issued, and, if that is related with harm to the state, as a result of violation of obligations by Ukraine with regard to non-proliferation of weapons of mass destruction and their means of delivery and restriction on conventional arms transfers;
8) customs control and customs registration of goods, transferred through the customs border;
9) provision by the agents of external economic activity with information regarding goods, to be exported, conditions of such goods international transfers, their final customers and the intermediary agents, guaranties with regard to final use of goods to be exported or imported with declared purposes;
10) provision of information about circumstances (if any have been identified), which change conditions of goods international transfers after obtaining the permissions to implement those transfers;
11) conduct of inspections with regard to use of goods for declared purposes only;
12) conduct of service investigations, related with violations of export control rules and procedures;

16. In order to implement international transfers of goods, mentioned in the second part of Article 20 of the Law "About External Economic Activity", the agents of external economic activity, in concordance with the Commission for Policy of Export Control and Military-Technical Cooperation with Foreign States to obtain special authorizations prior to that.

The list of documents to be presented by the agent of external economic activity to obtain the authorization to implement international transfers of goods, and procedures for obtaining those authorizations to be established by the Cabinet of Ministers of Ukraine.

17. The State Service for Export Control of Ukraine conducts expertise of requests and additional documents presented by the agents of external economic activity, by the foreign agents of economic activity regarding conduct of appropriate international transfers of goods.

According to the expertise results the States Service for Export Control makes a decision about the following:

1) issuing either positive or negative conclusions:

a) with regard to possibility to conduct negotiations, related with conclusion of the external economic agreements (contracts) for international transfers of goods, to be a subject to control, to the states, to be a subject to prohibition or restriction on deliveries of such goods, binding by international organizations, to which Ukraine is a member-state;
b) authorizing to implement transit of goods, to be a subject to control;
c) authorizing to implement temporary exportation of goods beyond the border of Ukraine or temporary importation of goods to the territory of Ukraine;

2) issuing the permission to implement international transfers of goods, to be a subject to control, including those with mentioning of special conditions of transfer, to be defined in a separate conclusion, or refusal to issue a permission or necessity to consider the issue by the Commission for Policy of Export Control and Military-Technical Cooperation with Foreign States;

3) cancellation or temporary suspension of validity of the issued permission to implement international transfers;

4) issuing an import certificate of Ukraine on goods, to be a subject to control, or a refusal to issue that.

5) Prolongation of the permission for international transfers of goods term of validity.

The decision by the State Service for Export Control of Ukraine can be protested by the agent of external economic activity to the Governmental Commission on Export Control Policy within ten days since the date of its making.

18. In order to conduct negotiations related with conclusion of the external economic agreements (contracts) for export of goods, to be a subject to control, as well, as in case of the presence of restrictions on deliveries of any other goods to a foreign state the exporter to obtain the positive conclusion by the State Service for Export Control of Ukraine regarding authorization to conduct such negotiations first.

The agents of external economic activity to notify the State Service for Export Control of Ukraine about start of negotiations on issues of export of goods to be a subject to control, within three days.

19. The agents of external economic activity within fifteen days after negotiations finish or the agreement (contract) has been concluded to report to the State Service for Export Control of Ukraine about negotiations results or concluded agreements (contracts).

20. In order to implement the right to conduct international transfers of goods and to negotiate transfers of goods to be a subject to control, the agents of external economic activity should register first in the State Service for Export Control of Ukraine.

21. Export of goods, which are material objects, containing information, attributed to state secrets, to be implemented in accordance with the current legislation referring to the state secrets protection matters.

22. The agent of external economic activity returns exported goods to Ukraine at his own expenses in case there are basics to consider, that final use of goods contradicts with the substance of the permission and request, basing on which the permission has been issued, and, if that is related with harm to the state, as a result of violation of obligations by Ukraine with regard to non-proliferation of weapons of mass destruction and their means of delivery and restriction on conventional arms transfers.

23. The State Service for Export Control of Ukraine reports annually before the 1-st of March to the Cabinet of Ministers of Ukraine and to the National Security and Defense Council in line with the established forms about its activity during the past year and presents proposals with regard to further improvement of the export control.

Permissions and conclusions authorizing to implement international transfers of goods

24. International transfers of goods, to be a subject to control, to be implemented exclusively on account of permissions and conclusions by the State Service for Export Control of Ukraine. In certain cases such permissions can be issued in line with decisions made by the Cabinet of Ministers of Ukraine or by the National Security and Defense Council.

Implementation of export of goods, designated for military purposes, to be permitted to the agent of external economic activity exclusively on the assumption of conclusion of the external economic agreement (contract) with the foreign agent of economic activity, authorized for by the government of the state receiving goods.

25. The permission is a basis to accept goods for customs control and customs registration, but does not release from presentation of other documents to the customs authorities, required for the implementation of the customs registration and the customs control in line with the current legislation of Ukraine.

26. The permission and conclusion authorizing to implement international transfers of goods, to be a subject to control, can be general or single.

The general permission and conclusion prove the right of the agent of external economic activity to implement export or import of goods with defining of specific conditions of delivery, state (group of states) of destination, or origin of goods, final customers and is valid for a designated period, but not longer than three years.

The single permission and conclusion to implement international transfer of goods are issued on account of the concluded agreement (contract), prove the right of the agent of external economic activity to implement international transfers of goods with defining of their amount and price, specific conditions of delivery, foreign agent of economic activity, state of destination, or origin of goods, final customers and is valid for a designated period, but not longer than one year.

In certain cases in line with decisions by the State Service for Export Control of Ukraine the permission can be issued for the whole period of contract validity, but not longer than two years.

27. The permission and conclusion authorizing to implement international transfers of goods to be developed on a standard blank form and to be signed by the Head of the State Service for Export Control of Ukraine or by his Deputy and sealed.

28. The permission and conclusion authorizing to implement international transfers of goods not to be a subject to passing to other agents of external economic activity. In case of juridical person termination or his re-registration as the agent of external economic activity, the permission and conclusion not to be descended to a successor or a re-registered agent of external economic activity.

29. The permission and conclusion authorizing to implement international transfers of goods to be a subject to cancellation or temporary suspension by the State Service for Export Control in following cases:

1) requirement to do that with the purpose of foreign policy, national security or domestic producer protection;
2) juridical person termination;
3) recognizing the agent of external economic activity or the foreign agent of economic activity to be a bankrupt;
4) establishment of the facts, which testify that the permission and conclusion authorizing to implement international transfers of goods have been issued on account of inauthentic or imperfect data;
5) establishment of the facts of breaching requirements by the agent of external economic activity or the foreign agent of economic activity with regard to specific conditions of delivery, basing on which the permission and conclusion have been issued;
6) introducing of changes to the external economic agreement (contract) after permission authorizing to implement international transfers of goods has been obtained;
7) establishment of the facts of violation by the agent of external economic activity of the current legislation or the international obligations by Ukraine with regard to the export control and these Provisions requirements.

Procedures for development and consideration of requests for obtaining the permissions and conclusions authorizing to implement international transfers of goods

30. In order to make a decision with regard to possibility to issue the permission and conclusion authorizing to implement international transfers of goods the agent of external economic activity sends to the State Service for Export Control of Ukraine a letter containing, a brief explanation of the appeal aim, adding the following enclosures:

1) 3 copies of a request according to a certain form;
2) a document, which proves obligations of a final customer of goods and all the intermediary agents (if there are any) with regard to use of goods for declared purposes only;
3) other documents depending on goods categories.

In case of export of goods, which as a state property are attributed to the sphere of ministries and other central bodies of executive power management, excluding property, which is under the state enterprises full jurisdiction, the agent of external economic activity to supplement the request with a copy of the appropriate ministry or other central body of executive power decision with regard to possibility to sale such goods.

While conducting expertise of the requests for obtaining the permissions authorizing to implement international transfers of goods, export control bodies are authorized to demand from the requesting person additional information, needed for conduct of impartial and timely expertise.

Documents developed in foreign languages to be presented along with their testified translations into official language.

31. In order to export goods the following data to be introduced into the external economic agreement (contract):

1) purpose and place of goods application;
2) final customer of goods;
3) obligations by the foreign agent of economic activity with regard to use of goods for declared purpose only;
4) final destination and amount of goods.

In certain cases, upon a request by the State Service for Export Control of Ukraine, the external economic agreement (contract) and other documents, mentioned in this paragraph, to be supplemented with an obligation to authorize the agent of external economic activity or appropriate governmental bodies of Ukraine to conduct inspections of goods, have been exported from Ukraine, with regard to proper use or to present a certificate, confirming delivery of goods or to present another document, issued by the authoritative governmental body of the state receiving goods, confirming that the goods have been imported to the territory of the state.

The State Service for Export Control of Ukraine is authorized to establish conditions, basing on which to be issued the permission and conclusion to implement international transfers of goods and conduct of negotiations with regard to the implementation of transfers of goods, to be a subject to control, including with regarding procedures for goods transportation, presentation of documents regarding confirmation of delivery or use of goods etc.

32. Consideration of the requests for obtaining the permission and conclusion authorizing to implement international transfers of goods, to be a subject to control, to be implemented by the State Service for Export Control of Ukraine with getting in case of necessity experts of central and local bodies of executive power, enterprises and organizations to take part.

Appropriate ministries and other central bodies of executive power to develop conclusions within two weeks. This period can be prolonged up to a month, if in line with the State Service for Export Control of Ukraine decisions experts on state secrets protection matters to be involved.

In case it is impossible to develop conclusions in time due to objective reasons, a ministry or another central body of executive power to notify the State Service for Export Control of Ukraine with substantiation of terms, conclusions to be developed.

In case the conclusion or notification have not been received in time the State Service for Export Control of Ukraine is authorized to consider that there are no objections with regard to international transfer of goods, established by the body has been requested for conclusions.

33. The period of consideration of the request to be established depending on goods category, but not to exceed the following terms, since the date, all documents needed have been obtained:

1) 45 days – for export (re-export) of goods, designated for military purposes;
2) 30 days – for export (re-export) of dual-use goods and temporary exportation (importation) of any goods;
3) 15 days – for import or transit of goods.

Time needed to obtain additional information from the requesting person no to be included in a period of consideration.

In case additional information has not been provided within two months, the request is rejected and not to be considered.

34. The period of the request consideration can be prolonged by the decision by the Cabinet of Ministers of Ukraine.

In order to obtain the conclusion about possibility to implement temporary exportation or temporary importation of goods for display on exhibitions, fairs with the purpose to advertise, for conduct of tests and for other similar purposes, if that does not stipulate transfer of the right of property on goods, the agent of external economic activity sends to the State Service for Export Control of Ukraine a letter containing, a brief explanation of the appeal aim, adding the following enclosures:

- 3 copies of a request according to a certain form;
- a document, containing information about the name of the exhibition or fair, place and term of goods display, their testing etc., as well, as obligations (guaranties) to return goods to Ukraine without changes to their quantitative and qualitative characteristics;
- attested copies of documents, according to which temporary exportation of goods to be implemented (an invitation for participation in the exhibition, fair, an agreement (contract) with a foreign partner etc.).

The request mentioned in this paragraph to be considered within 15 days.

Specific features of control while transit of goods

36. Transit of goods via the territory of Ukraine to be implemented on the assumption of obtaining by the agent of external economic activity or the foreign agent of economic activity the positive conclusion issued by the State Service for Export Control of Ukraine.

In order to obtain the conclusion about possibility to implement transit of goods, the agent of external economic activity or the foreign agent of economic activity sends to the State Service for Export Control of Ukraine a letter containing, a brief explanation of the appeal aim, adding the following enclosures:

1) 3 copies of a request according to a certain form;
2) an attested copy of an export license issued by the state-exporter or another official document, containing necessary data, required to conduct expertise and to make an appropriate decision
3) other documents depending on goods category and a receiving state upon the State Service for Export Control of Ukraine request.

37. Transit of goods with an escort by military guard to be implemented in line with the existing procedures in the presence of positive conclusion by the Ministry of Defense of Ukraine, with an escort of armed guards (except for military guard) – a conclusion by the Ministry of Internal Affairs of Ukraine, transit of goods, attributed to hazardous – a conclusion by the Ministry of Environmental Protection and Nuclear Safety of Ukraine.

38. Implementation of transit can be denied or terminated after it starts in the following cases:

1) potential threat to the national security of Ukraine occurs, if the final customer will receive the goods;
2) possible harm to the state as a result of accidents and ecologic catastrophes while in transport;
3) when that contradicts with the international obligations by Ukraine with regard to non-proliferation of weapons of mass destruction and officially binding bans or restrictions by the United Nations on transfers of goods, designated for military purposes, and dual-use goods to the state of destination;
4) the owner of goods to refuse to accept commitment with regard to paying damages in case of accidents or catastrophes, related with transportation of hazardous goods via the territory of Ukraine;
5) establishment of the customs regulations violations or establishment of the fact of attempts to transfer goods to the final customer, which has not been mentioned in the accompanying documents.

Guaranties by Ukraine with regard to use of imported goods for declared purposes only

39. Guaranties by Ukraine with regard to use of imported goods for declared purposes only to be develop with an international import certificate of Ukraine or another document, containing required volume of guaranties.
The import certificate to be issued to the agent of external economic activity or an authoritative body of a foreign state for goods, to be imported, upon its request.

40. The import certificate to be used with a permission of the agent of external economic activity only.

41. The import certificate becomes invalid, if it has not been presented to the appropriate authoritative body of the foreign state within six months since it was issued.

42. The agent of external economic activity to demand to return the import certificate, issued for him, from the foreign agent of economic activity in the following cases:

1) mentioned in the certificate amount or volume of goods exceeds amount or volume of goods, mentioned in the external economic agreement (contract);
2) mentioned in the certificate amount or volume of goods exceeds amount or volume of goods, mentioned in the license, issued by the appropriate authoritative body of the foreign state, including the case, it has refused to issue the license;
3) import delivery has not been completed until the end of its term of validity;
4) changes to party’s intentions occur by the end of its term of validity.

43. The agent of external economic activity within a month since customs registration to inform the State Service for Export Control of Ukraine about receiving of goods, mentioned in the import certificate. Use of goods in contradiction with the import certificate is a subject to liability according to the current legislation of Ukraine.

44. In case goods are imported, the customs body, implementing customs registration, to issue a certificate of delivery or another document, notifying that goods have been delivered to Ukraine.

Procedures for issuing the certificate to be established by the cabinet of Ministers of Ukraine.

The liability in the sphere of the state export control

45. The agents of external economic activity, violating rules and procedures for the for implementation of international transfers of goods, to be a subject to the following measures:

1) cancellation or temporary suspension of validity of the permission to implement export or import of goods;
2) recall of the export/import certificate before it has been used by the decision by the State Service for Export Control of Ukraine;
3) cancellation by the State Service for Export Control of Ukraine of the positive conclusion authorising to conduct negotiations, related with conclusion of the external economic agreements (contracts);
4) suspension of special authorities to implement export or import of goods, mentioned in the second part of the Article 20 of the Law "About External Economic Activity".

The agents of external economic activity and the foreign agents of economic activity, violating procedures for the implementation of international transfers of goods, to be also a subject to liability according to the current legislation of Ukraine.

The Head of the Administration of the President of Ukraine
E. KUSHNAROV

This material is produced independently for NTI by the Center for Nonproliferation Studies at the Monterey Institute of International Studies and does not necessarily reflect the opinions of and has not been independently verified by NTI or its directors, officers, employees, agents. Copyright © 2003 by MIIS.

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