Vol. 148, No. 23 — November 5, 2014

Registration

SOR/2014-239 October 24, 2014

EXPORT AND IMPORT PERMITS ACT

Order Amending the Export Control List

P.C. 2014-1120 October 23, 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

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 – December 2013, 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 and 12, 1996 and amended by WA-LIST (13) 1 at the Plenary Meeting held on December 3 and 4, 2013. (Accord de Wassenaar)

2. Paragraph (b) of Group 3 of the schedule to the List is replaced by the following:

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

4. 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 the MTCR/TEM/2013/Annex that was adopted at the Plenary Meeting held from October 14 to 18, 2013.

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

(2) Paragraph (b) of Group 7 of the schedule to the English version of the List is replaced by the following:

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.)

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 purposes for which the Governor in Council may deem it necessary to include an article on the ECL, including, pursuant to paragraph 3(1)(d) of the EIPA, to implement an intergovernmental arrangement or commitment.

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

2. Issues

In order to implement its international arrangements and commitments undertaken in the various multilateral export control and non-proliferation regimes in which Canada participates and for export controls on 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.

3. Objectives

This Order Amending the Export Control List (the Order) 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 up until December 31, 2013. The Order also makes minor editorial corrections identified by the Standing Joint Committee for the Scrutiny of Regulations.

4. Description

The Order makes various changes, including the amendment to the definition of the term “guide,” updates to the various commitments made in the multilateral export control and non-proliferation regimes in which Canada participates, and a minor editorial modification identified by the Standing Joint Committee for the Scrutiny of Regulations.

The changes to the ECL are as follows:

The definition of the term “guide” in section 1 of the ECL is replaced by A Guide to Canada’s Export Controls – December 2013 so that it refers to the latest version of the document.

The December 2013 edition of the 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 the Order include the addition of controls over specific accelerometer-based hydro-acoustic sensors, specific intrusion software, specific network surveillance equipment, specific external thermal shields for use in nuclear reactors, specific forms of rhenium and rhenium alloys, specific high explosive containment vessels as well as the removal of controls on certain magnetic tape recorders. Clarifications have also been made to controls relating to microwave monolithic integrated circuits, energetic materials, streak and framing cameras, rocket propulsion systems, gravity meters, fermenters and flow-filtration equipment.

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 Canada’s export control regime.

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 minor editorial concerns relating to the 2009 Order. The majority of these concerns were addressed in the last amendment to the ECL (SOR/2014-90). However, one item was inadvertently omitted at that time.

Paragraph (b) of Group 7 of the schedule to the ECL included a minor difference between the English and French versions of the Order, with the English version of the Regulations unnecessarily repeating the wording “the export of which Canada has agreed to control” in the opening paragraph of Group 7. This repetitive wording is redundant and will be removed.

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.

5. Consultation

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 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.

6. “One-for-One” Rule

As the Order merely makes changes to the items subject to control under Canada’s export control regime for strategic and military goods and technology and does not alter the regime’s long-established reporting and record retention obligations, the “One-for-One” Rule does not apply.

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 with the application process.

8. Rationale

The Order 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 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 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 an amendment to the ECL is required for changes to be implemented in Canadian law.

9. Implementation, enforcement and service standards

Exports or transfers 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. Exporting or transferring, or attempting to export or transfer goods and technology identified on the ECL without the required EIPA authorization, can result in prosecution.

10. Contact

Blair Hynes
Policy Advisor
Export Controls Division
Trade Controls Bureau
Department of Foreign Affairs, Trade and Development
125 Sussex Drive
Ottawa, Ontario
K1A 0G2
Telephone: 343-203-4333
Fax: 613-996-9933
Email: Blair.Hynes@international.gc.ca