Vol. 148, No. 9 — April 23, 2014
SOR/2014-90 April 11, 2014
EXPORT AND IMPORT PERMITS ACT
Order Amending the Export Control List
P.C. 2014-424 April 10, 2014
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 and to implement an intergovernmental arrangement or commitment;
Therefore, His Excellency the Governor General in Council, on the recommendation of the Minister of Foreign Affairs, pursuant to paragraphs 3(1)(a) and (d) and section 6 (see footnote a) of the Export and Import Permits Act (see footnote b), makes the annexed Order Amending the Export Control List.
ORDER AMENDING THE EXPORT CONTROL LIST
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 – December 2012, published by the Department of Foreign Affairs, Trade and Development. (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 (12) 1, 12-12-2012 at the Plenary meeting held on December 11–12, 2012. (Accord de Wassenaar)
2. Paragraph (b) of Group 3 of the schedule to the List is replaced by the following:
- (b) in accordance with the procedures referred to in the Information Circular INFCIRC/254/Rev.11/Part 1 of the International Atomic Energy Agency of November 12, 2012.
3. Paragraph 5504(2)(i) of the schedule to the List is replaced by the following:
- (i) any other articles not specifically set out in paragraphs (a) to (h) or in Group 2 or Group 6 that are United States origin goods or technology, which have been determined under Parts 120 to 130 of Title 22 of the International Traffic in Arms Regulations of the Code of Federal Regulations (United States) as having substantial military applicability, and which have been specially designed or modified for military purposes. (All destinations other than in the United States)
4. Group 6 of the schedule to the List is replaced by the following:
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 the MTCR/TEM/2012/Annex that was adopted at the Plenary meeting held on October 24–26, 2012.
5. (1) 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, this 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 June 11–15, 2012; and
(2) Paragraph (b) of Group 7 of the French version of the schedule to the List is replaced by the following:
- b) aux termes de la Convention sur l’interdiction de la mise au point, de la fabrication, du stockage et de l’emploi des armes chimiques et sur leur destruction signée à Paris, France, le 13 janvier 1993.
COMING INTO FORCE
6. 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.)
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 purposes for which the Governor in Council may deem it necessary to include an article on the ECL, including to implement an intergovernmental arrangement or commitment, pursuant to paragraph 3(1)(d) of the EIPA.
Section 6 of the EIPA authorizes the Governor in Council to amend the ECL.
In order for Canada to implement its international arrangements 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 arrangements and commitments change.
In order for the Department of Foreign Affairs, Trade and Development to implement minor modifications recommended by the Standing Joint Committee for the Scrutiny of Regulations, the ECL must be amended.
This Order Amending the Export Control List amends the ECL to reflect the Government of Canada’s arrangements, 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 Amending the Export Control List also makes minor editorial corrections identified by the Standing Joint Committee for the Scrutiny of Regulations.
The Order Amending the Export Control List consists of various changes such as the amendment to the definition of the “Guide,” the updating of references to various international commitments, and minor editorial modifications identified by the Standing Joint Committee for the Scrutiny of Regulations. 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 – December 2012
The definition of “Guide” in section 1 of the ECL is replaced by “A Guide to Canada’s Export Controls – December 2012” so that it refers to the latest version of the document.
The December 2012 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. Some of the changes resulting from this Order Amending the Export Control List include the addition of controls over direct digital synthesizers and various human and plant pathogens, as well as the deletion of controls on certain cryptographic hardware components used in mass market products. Controls relating to spin forming machines and wind tunnels have been relaxed, and clarifications to controls relating to hard body armour plates and certain telecommunications have also been made.
(2) 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.
(3) Required minor editorial modifications identified by the Standing Joint Committee for the Scrutiny of Regulations
On April 30, 2009, the Governor in Council on the recommendation of the Minister of Foreign Affairs amended the ECL (SOR/2009-128). On April 25, 2012, the Standing Joint Committee for the Scrutiny of Regulations sent a letter to the Department of Foreign Affairs, Trade and Development identifying two minor editorial concerns relating to the 2009 Order:
- (a) subsection 13(3) of the previous Order regarding the reference to the ECL item being amended. Subsection 13(3) of SOR/2009-128 stated that “Paragraph 5504(i) of the schedule of the List is replaced by the following:”. The correct reference should have been “Paragraph 5504(2)(i) of the schedule to the List is replaced by the following:”. This Order corrects that reference in the amending formula; and
- (b) paragraph (b) of Group 7 of the schedule to the ECL included a minor difference between the English and French versions of the Order. The English version identified the location of the signature of the Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on Their Destruction as Paris, France, while the French version only stated “Paris.” Both versions of the Order now correctly reference “Paris, France.”
Detailed list of changes
A detailed document highlighting the changes resulting from the amendment of the ECL will be made available on the Export Controls Division’s Web site at www.exportcontrols.gc.ca upon the coming into force of the Order.
As is customary when dealing with potential changes to Canada’s export controls regime, the Department of Foreign Affairs, Trade and Development consulted with private industry and various other Canadian government departments and agencies, including 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.
6. “One-for-One” Rule
The “One-for-One” Rule does not apply to this Order, as this Order implements various commitments that the Government of Canada has made in various international fora.
7. Small business lens
This amendment to the ECL is not expected to result in any significant increase in the administrative burden for small businesses within Canada. In the event that this amendment does result in a small business being required to obtain a permit in order to export, the Department of Foreign Affairs, Trade and Development will assist the enterprise throughout the application process.
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 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.
As a participating state in these regimes, the Government of Canada implements its export controls over goods and technology on the basis of the commonly negotiated lists. Changes to these multilateral lists are typically negotiated on an annual basis and, in order to be implemented in Canadian law, an amendment to the ECL is required.
9. 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 export or transfer, or to attempt to export or transfer, except in accordance with an export permit issued under the Export and Import Permits Act can result in prosecution.
Export Controls Division
Trade Controls Bureau
Department of Foreign Affairs, Trade and Development
125 Sussex Drive