Vol. 147, No. 12 — June 5, 2013
SOR/2013-99 May 21, 2013
CANADIAN ENVIRONMENTAL PROTECTION ACT, 1999
Order Amending Schedule 3 to the Canadian Environmental Protection Act, 1999
Whereas, pursuant to subsection 332(1) (see footnote a) of the Canadian Environmental Protection Act, 1999 (see footnote b), the Minister of the Environment published in the Canada Gazette, Part I, on September 29, 2012, a copy of the proposed Order Amending Schedule 3 to the Canadian Environmental Protection Act, 1999, in the annexed form, and persons were given an opportunity to file comments with respect to the proposed Order or to file a notice of objection requesting that a board of review be established and stating the reasons for the objection;
Therefore, the Minister of the Environment and the Minister of Health, pursuant to section 100 of the Canadian Environmental Protection Act, 1999 (see footnote c), make the annexed Order Amending Schedule 3 to the Canadian Environmental Protection Act, 1999.
Ottawa, May 10, 2013
Minister of the Environment
Ottawa, May 16, 2013
Minister of Health
ORDER AMENDING SCHEDULE 3 TO THE CANADIAN ENVIRONMENTAL PROTECTION ACT, 1999
1. Part 2 of Schedule 3 to the Canadian Environmental Protection Act, 1999 (see footnote 1) is amended by adding the following after item 33:
34. Endosulfan (CAS 115-29-7)
COMING INTO FORCE
2. This Order comes into force on the day on which it is registered.
REGULATORY IMPACT ANALYSIS STATEMENT
(This statement is not part of the Order.)
Canada has committed to shared responsibility and cooperative efforts to address the international trade of chemicals and pesticides. Schedule 3 to the Canadian Environmental Protection Act, 1999 (the Export Control List or “ECL”), and the Export of Substances on the Export Control List Regulations, help Canada to meet its international obligations. The Order Amending Schedule 3 to the Canadian Environmental Protection Act, 1999 (hereinafter referred to as the Order) adds the pesticide endosulfan which was recently added to Annex III of the Rotterdam Convention.
The Export Control List is a list of substances whose exports are controlled because use in Canada is prohibited or restricted, or because Canada has accepted to control the export under the terms of an international agreement (for example, the Rotterdam Convention). Section 100 of the Canadian Environmental Protection Act, 1999 (CEPA 1999) provides the ministers of the Environment and of Health with the authority to add or delete substances from the ECL by order. These amendments are published in the Canada Gazette.
The Export of Substances on the Export Control List Regulations apply to exports of substances on the ECL. The Regulations
- Describe the manner in which to notify the Minister of exports of all substances listed in the ECL;
- Contribute to ensure Canada’s continued compliance with the Rotterdam Convention by ensuring exports subject to the Prior Informed Consent (PIC) procedure under that Convention are only sent to countries who have consented to their import; (see footnote 2) and
- Contribute to ensure Canada’s continued compliance with the Stockholm Convention by prohibiting exports of Persistent Organic Pollutants that would contravene this treaty. (see footnote 3)
The Rotterdam Convention
The Rotterdam Convention, which entered into force in February 2004, establishes a list of substances (Annex III) that have been banned or severely restricted by at least two Rotterdam Parties for health and/or environmental reasons. Additionally, pesticide formulations can also be listed in Annex III upon nomination by a single developing-country Party. The Convention facilitates information exchange between Parties in which the “prior informed consent” of the importing Party is required prior to export of these substances. This Convention also requires “export notification” through which the exporting Party is obligated to notify and send information to the importing party when exporting a substance subject to domestic prohibition or restriction on use.
Endosulfan is a pesticide which is currently registered for use on greenhouse non-food crops, terrestrial food crops, and outdoor ornamentals. It is not manufactured in Canada and is to be phased out by January 1, 2017. This phase-out is mandatory and reflects the agreement between Health Canada’s Pest Management Regulatory Agency, registrants, vendors and users of pesticide products containing endosulfan. Once endosulfan is listed to the Export Control List, exporters of the substance would be required to provide prior notice of export and apply for export permits from Environment Canada if the exports are to another Party to the Rotterdam Convention.
The objective of the Order is to amend the ECL to continue Canada’s compliance with its international obligations under the Rotterdam Convention.
The Order adds the pesticide endosulfan (Chemical Abstracts Service [CAS] registry number (see footnote 4) 115-29-7), which has been added to Annex III to the Rotterdam Convention, to Part 2 of the ECL. Substances listed to the ECL are grouped in three parts:
- Part 1 includes substances which are prohibited for use in Canada. Under the authority of CEPA 1999, these substances can only be exported under very limited circumstances (such as for destruction).
- Part 2 includes substances for which notification or consent for export is required pursuant to an international agreement. These substances are subject to the Prior Informed Consent (PIC) procedure of the Rotterdam Convention, which is an international convention promoting shared responsibility and cooperative efforts amongst Parties in the international trade of certain hazardous chemicals.
- Part 3 includes substances which are restricted for use in Canada. An example of these substances is tributyltetradecylphosphonium chloride. This substance can be exported subject to the Minister being notified in advance.
The “One-for-One” Rule does not apply to this Order. Endosulfan is being phased out and there are no exports expected in the future based on direct consultation with registrants. Therefore, no incremental administrative costs are expected to be incurred by businesses.
Small business lens
The small business lens does not apply to this Order as there are no expected impacts on industry or small business based on current and anticipated practices.
Comments received after the publication of the proposed Order in the Canada Gazette, Part I
A 75-day comment period took place after publication of the proposed Order in the Canada Gazette, Part I (CGI), from September 29, 2012, through December 13, 2012. Identified stakeholders with known activities relating to the substance were notified by email to provide further opportunity to comment. One comment was received during this period from an environmental nongovernmental organization. The commenter recommended listing endosulfan to Part 1 of the ECL instead of Part 2 which would prohibit exports of endosulfan except in special circumstances.
Environment Canada’s response is that some uses of endosulfan are currently allowed and Part 1 includes substances which are prohibited for use in Canada. Endosulfan is presently being phased out in Canada with some registered uses continuing until December 2016. A listing on Part 2 of the ECL will ensure that any export of endosulfan will be controlled so that Canada complies with its obligations under the Rotterdam Convention.
Comments received prior to the publication of the proposed Order in the Canada Gazette, Part I
A comment received from a consultation prior to the CGI publication suggested listing two isomers of endosulfan found in Annex A of the Stockholm Convention. These isomers are not listed to the Rotterdam Convention.
Environment Canada’s response is that neither of the two isomers identified as possible candidates for listing have ever been registered under the Pest Control Products Act in Canada. Accordingly, all of the prohibitions in respect of these individual isomers as a pest control product under that Act apply, including import and use. Also, they are not individually listed to Annex III of the Rotterdam Convention. Therefore, they are not being added to the ECL at this time.
The addition of endosulfan to the ECL is an effective means of contributing to ensure Canada’s continued compliance with its international obligations under the Rotterdam Convention. To ensure a controlled substance is exported in accordance with Canada’s obligations, it must be listed to the ECL. There is no other option for compliance.
The impacts of the Order are estimated to be positive but small in magnitude and are discussed qualitatively below.
The Order will benefit Canadians by allowing Canada to remain in good standing with its international export commitments under the Rotterdam Convention. Canada’s participation in this international convention provides benefits to Canadians by ensuring that substances in international trade are used in an environmentally sound manner which reduces damage to the global and domestic environment and ecosystems.
The substance endosulfan is not currently manufactured in Canada, but is imported as a pesticide. However, the use of endosulfan will be phased out in Canada by 2017. Although the substance has recently been exported for disposal and reformulation, it was in compliance with the Rotterdam Convention and this export is expected to be a one-off event. Based on this information, no future exports are expected and administrative costs for export permit applications and export notifications are estimated to be zero.
The Order is not expected to impact competitiveness for any regulatee or sector. While there are currently no known exporters of endosulfan, if exports were to occur in the future they would be subject to the requirements of the applicable regulations.
The cost to Government of the Order is negligible. Additional costs to administer and enforce the regulations which are linked to the ECL are not expected as a result of the Order. Administrative costs for export permit application and processing of export notifications are estimated to be zero in the absence of exports.
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- Footnote a
S.C. 2004, c. 15, s. 31
- Footnote b
S.C. 1999, c. 33
- Footnote c
S.C. 1999, c. 33
- Footnote 1
S.C. 1999, c. 33
- Footnote 2
The full title of the Convention is the Rotterdam Convention on the Prior Informed Consent Procedure for Certain Hazardous Chemicals and Pesticides in International Trade.
- Footnote 3
The full title of the Convention is the Stockholm Convention on Persistent Organic Pollutants.
- Footnote 4
CAS RN: Chemical Abstracts Service registry number. Registry numbers are unique numerical identifiers of the Chemical Abstracts Service, property of the American Chemical Society.