Response to Comments for the Export of Substances on the Export Control List Regulations

Comments received from Canada Gazette, Part I consultation for the draft Export of Substances on the Export Control List Regulations

Consultation Period:  August 6, 2011 through October 20, 2011 (75 days)

CategoryParaphrased CommentResponse
Part 1 of the Export Control ListThe conditions relative to the Stockholm Convention1 in the draft Regulations should apply to substances in Part 1 of the Export Control List.   Substances listed in Part 1 can only be exported for the purpose of destruction or by Ministerial order as per 101(2)(a) of the Canadian Environmental Protection Act, 1999.  This exceeds the requirements of the Stockholm Convention export obligations as provided in Article 3 of that Convention.
Prior Informed Consent for POPsCanada should require that the country importing a Persistent Organic Pollutant (POP) provide a written response to confirm consent for the export. The Stockholm Convention on POPs does not have a Prior Informed Consent mechanism similar to the Rotterdam Convention. However, Parties to the Stockholm Convention register specific exemptions or acceptable purposes exemptions for certain substances, and non-parties provide annual certifications regarding the use of POPs before importing.
Exports for laboratory useThe draft Regulations do not cover exports for individual and laboratory use.The scope of the Rotterdam Convention2 exempts exports for individual or laboratory use when the quantities are not likely to affect human health or the environment.  The Stockholm Convention allows exports of POPs in quantities to be used for laboratory-scale research or as a reference standard.  Accordingly, there is a 10 kg annual threshold.
Regulatory burdenA chemical is listed under the Rotterdam Convention as one or both of “industrial chemical” or “pesticide”.  The draft Regulations should not apply to a substance listed in Part 2 of the Export Control List when exported for a use other than the category for which it is listed in Annex III of the Rotterdam Convention.

The Regulations apply the same practice as in the repealed Export of Substances Under the Rotterdam Convention Regulations, whereby exports of Part 2 substances for a use other than that for which the substance is listed in Annex III of the Convention do not require an export permit under the Regulations. 

The prior notification of export applies to all exports of substances listed to the Export Control List, as required by subsection 101(1) of the Canadian Environmental Protection Act, 1999.

Regulatory burdenThe Regulations should not request information that is sometimes not available or unknown to the exporter.  It should clearly delineate what is needed or allow flexibility by indicating “when known” or “if known”. Certain information requirements for prior notice of export and for permit applications under the Regulations has been qualified with “if known”.  However, the Government of Canada must have certain information (e.g. country of destination) to ensure Canada’s compliance with international obligations under the Rotterdam and Stockholm Conventions.
DefinitionA definition should be provided to determine what would be considered “trace amounts” for the purposes of the draft Regulations.The Regulations match the Stockholm Convention in this instance which uses “trace”, but does not define or quantify it. 
Labelling and information sharingWhen exporting a Persistent Organic Pollutant (POP), Canada should provide information, in an official language of the importing country, regarding its toxicity, measures to be taken for its safe handling, use and disposal.The labelling requirements in the Regulations meet Canada’s obligations under the Rotterdam Convention and cover all substances exported to Parties to the Convention whether it is a POP or not.  Each export subject to the labelling requirements must include a Material Safety Data Sheet and, as far as practicable, be provided in at least one of the official languages of the importing country.
Mechanism for public nomination of substancesSome consideration should be made to amend the draft Regulations to include a process by which the public can nominate substances to be added to the Export Control List.The authority to add substances is provided under Canadian Environmental Protection Act, 1999 (CEPA 1999), not the Regulations. Section 100 of CEPA 1999 gives both Ministers the authorities for listing substances to the Export Control List and provides the conditions under which substances may be added.

1 Full title of the convention is the Rotterdam Convention on the Prior Informed Consent (PIC) Procedure for Certain Hazardous Chemicals and Pesticides in International Trade

2 Full title of the convention is the Stockholm Convention on Persistent Organic Pollutants

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