Vol. 147, No. 4 — February 13, 2013

Registration

SOR/2013-12 January 31, 2013

EXPORT AND IMPORT PERMITS ACT

Order Amending the Export Control List

P.C. 2013-21 January 31, 2013

Whereas the Governor in Council deems it necessary to control the export of goods and technology to ensure that arms, ammunition, implements or munitions of war, naval, army or air stores or any articles deemed capable of being converted into those things or made useful in the production of those things or otherwise having a strategic nature or value will not be made available to any destination where their use might be detrimental to the security of Canada;

Therefore, His Excellency the Governor General in Council, on the recommendation of the Minister of Foreign Affairs, pursuant to paragraph 3(1)(d) (see footnote a) and section 6 (see footnote b) of the Export and Import Permits Act (see footnote c), makes the annexed Order Amending the Export Control List.

ORDER AMENDING THE EXPORT CONTROL LIST

AMENDMENTS

1. The definitions “Guide” and “Wassenaar Arrangement” in section 1 of the Export Control List (see footnote 1) are replaced by the following:

“Guide” means A Guide to Canada’s Export Controls – April 2011, published by the Department of Foreign Affairs and International Trade. (Guide)

“Wassenaar Arrangement” means the Wassenaar Arrangement on Export Controls for Conventional Arms and Dual-Use Goods and Technologies that was reached at the Plenary Meeting in Vienna, Austria on July 11-12, 1996 and amended by WA-LIST (10) 1 Corr., 22-12-2010 at the Plenary Meeting held on December 9-10, 2010. (Accord de Wassenaar)

2. Item 5202 of the schedule to the List and the heading before it are repealed.

3. Group 6 of the schedule to the List is replaced by the following:

GROUP 6
MISSILE TECHNOLOGY CONTROL REGIME

Goods and technology, as described in Group 6 of the Guide, the export of which Canada has agreed to control under bilateral arrangements concluded on April 7, 1987, in accordance with the Guidelines for Sensitive Missile-Relevant Transfers, issued by the Missile Technology Control Regime to control the export of missile equipment and technology referred to in MTCR/TEM/2011/Annex adopted at the Plenary Meeting held on April 11-15, 2011.

4. Paragraph (a) of Group 7 of the schedule to the List is replaced by the following:

  • (a) under a bilateral arrangement concluded on December 24, 1992, between Canada and the United States, that arrangement having been made in accordance with the Australia Group Guidelines for Transfers of Sensitive Chemical or Biological Items issued by the Australia Group to control the export of chemical and biological weapons the list of which was amended at the Plenary meeting held on May 31-June 4, 2010; and

COMING INTO FORCE

5. This Order comes into force 30 days after the day on which it is published in Part II of the Canada Gazette.

REGULATORY IMPACT
ANALYSIS STATEMENT

(This statement is not part of the Order.)

1. Background

Subsection 3(1) of the Export and Import Permits Act (EIPA) authorizes the Governor in Council to establish a list of goods and technologies called the Export Control List (ECL), which identifies goods and technology that are controlled for export or transfer from Canada to other countries. There are multiple reasons for an article’s inclusion on the ECL, including the implementation of an intergovernmental arrangement or commitment.

Section 6 of the EIPA authorizes the Governor in Council to amend the ECL.

2. Issue

In order for Canada to implement its international obligations and commitments and for Canada’s export policies concerning strategic and military goods and technology to be effective, the ECL must be amended as these obligations and commitments change.

In order for Canada to remove controls that are determined to be no longer required by the Government of Canada, the ECL must be amended.

3. Objectives

This Order amends the ECL to reflect the Government of Canada’s obligations, commitments and policies resulting from Canada’s participation in the Wassenaar Arrangement on Export Controls for Conventional Arms and Dual-Use Goods and Technologies, the Nuclear Suppliers Group, the Missile Technology Control Regime and the Australia Group. The Order also removes controls that are determined to no longer be necessary.

4. Description

The Order Amending the Export Control List consists of various changes, such as the amendment of the definition of the “Guide,” the removal of unnecessary control measures and the updating of references to various international commitments. The majority of amendments are a direct result of Canada’s participation in various multilateral export control regimes.

The changes to the ECL are as follows:

(1) A Guide to Canada’s Export Controls — April 2011

The definition of “Guide” in section 1 of the ECL is replaced by “A Guide to Canada’s Export Controls — April 2011” so that it refers to the latest version of the document.

The April 2011 edition of A Guide to Canada’s Export Controls incorporates Canada’s obligations and commitments with respect to the four multilateral export control regimes of which Canada is a member. It also includes additions of strategic and military goods and technology of importance to national and international security. Some of the changes include the addition of controls over acoustic seabed survey equipment, laser microphones and underwater electromagnetic receivers incorporating magnetic field sensors, as well as deletions from and clarification to existing export controls, such as the relaxation of controls relating to certain products incorporating cryptographic algorithms where the cryptographic algorithms cannot be used, certain ball bearings and certain fibre optic cables.

(2) Removal of export controls over certain food products

The amendment removes item 5202, “Roe Herring,” from the schedule to the ECL.

(3) Various references to international commitments

References to export control texts issued by various multilateral export control regimes to which Canada is a member, including the Wassenaar Arrangement on Export Controls for Conventional Arms and Dual-Use Goods and Technologies (Dual-Use and Munitions Lists), the Nuclear Suppliers Group (Non-Proliferation and Nuclear-Related Dual-Use Lists), the Missile Technology Control Regime (Missile Technology Control Regime List) and the Australia Group (Chemical and Biological Weapons Non-Proliferation List), have been updated to incorporate these commitments into Canadian export control regulation.

Complete list of changes

A detailed document highlighting the changes resulting from the amendment of the ECL is available on the Web site of Foreign Affairs and International Trade Canada’s Export Controls Division at www.exportcontrols.gc.ca.

5. Consultation

As is customary when dealing with potential changes to Canada’s export controls regime, the Department of Foreign Affairs and International Trade (DFAIT) consulted with private industry and various other Canadian government departments and agencies, including the Department of National Defence and Industry Canada in the elaboration of its positions prior to entering into international negotiations and undertaking commitments. There have been no specific consultations undertaken regarding the implementation of these previously consulted commitments.

In late December 2011, DFAIT requested stakeholder comments regarding the possible removal of roe herring from the ECL. All stakeholders were provided an opportunity to provide their opinion on the control. In total, 10 submissions were received with a majority of respondents expressing strong support for the removal of roe herring from the ECL.

All comments were taken into consideration. DFAIT’s responses to those comments calling for the continued inclusion of roe herring on the ECL are summarized below:

(1) Impact on the industry

“The removal of export controls on roe herring will have a negative impact on the fishing industry in British Columbia, including job losses, loss of skilled workers, near monopolistic control by processors and a decrease in economic returns on Canadian resources.”

The Government of Canada is aware that the removal of export controls over unprocessed roe herring may result in an increase in exports of this item. However, given the fact that the intergovernmental agreement that lead to the inclusion of roe herring on the ECL has expired, and that the original concerns that lead to the implementation of controls over roe herring exports no longer exist, the control on exports of this item is no longer necessary.

(2) The current downturn in the industry is short term in nature

“The current difficulties faced in British Columbia’s roe herring fishery are short-term and it will rebound soon with an overall improvement in the resource numbers and innovation in processing.”

The Government of Canada is aware of how seasonal fluctuations can impact an industry such as the roe herring fishery/industry. However, even if improvements subsequently occur in the resource numbers and if innovations in processing occur, since the intergovernmental agreement that gave rise to this control has expired, and no intervening purpose to maintain the control has arisen, the conclusion is that the maintenance of this export control is no longer required. In addition, given that the direct competitors of Canadian exporters of these items are not subject to such export restrictions, the Government of Canada believes that the control should be removed.

6. Small business lens

This amendment to the ECL is not expected to result in any increase in the administrative burden for small businesses within Canada.

7. Rationale

The Order Amending the Export Control List consists of various changes that are largely a direct result of Canada’s participation in various multilateral export control regimes, including the Wassenaar Arrangement of Export Controls for Conventional Arms and Dual-Use Goods and Technology, the Nuclear Suppliers Group, the Missile Technology Control Regime and the Australia Group.

As a participating state in these regimes, the Government of Canada implements controls over goods and technology identified in commonly negotiated lists. Changes to these multilateral lists are typically negotiated on an annual basis and in order to be formally incorporated into Canada’s export control regime, an amendment to the ECL is required.

The Order Amending the Export Control List also removes item 5202, “Roe Herring,” from the ECL, as the Government of Canada believes export controls over this item are no longer necessary. It was originally controlled for the purpose of implementing an intergovernmental agreement between the United States and Canada, which has since expired. The Government of Canada, after considering comments received from stakeholder consultations, believes that the original concerns that led to the implementation of controls over roe herring exports no longer exist. There is therefore no current basis for its continued inclusion on the ECL.

8. Implementation, enforcement and service standards

Exports of goods and technology listed in the ECL must be authorized by export permits to all destinations except where otherwise stated. The Canada Border Services Agency and the Royal Canadian Mounted Police are responsible for the enforcement of export controls. Failure to possess the required export permit can result in prosecution under the Export and Import Permits Act.

9. Contact

Blair Hynes
Deputy Director
Export Controls Division
Export and Import Controls Bureau
Department of Foreign Affairs and International Trade
125 Sussex Drive
Ottawa, Ontario
K1A 0G2
Telephone: 613-996-0558
Fax: 613-996-9933
Email: Blair.Hynes@international.gc.ca