Regulations Amending the Schedule 1 Chemicals Regulations (Chemical Weapons Convention): SOR/2018-202

Canada Gazette, Part II, Volume 152, Number 22

Registration

October 10, 2018

CHEMICAL WEAPONS CONVENTION IMPLEMENTATION ACT

P.C. 2018-1249 October 4, 2018

Her Excellency the Governor General in Council, on the recommendation of the Minister of Foreign Affairs, pursuant to section 18 of the Chemical Weapons Convention Implementation Act ^{footnote a}, makes the annexed Regulations Amending the Schedule 1 Chemicals Regulations (Chemical Weapons Convention).

Regulations Amending the Schedule 1 Chemicals Regulations (Chemical Weapons Convention)

Amendments

1 (1) Paragraph 3(1)(a) of the Schedule 1 Chemicals Regulations (Chemical Weapons Convention) ^{footnote 1} is replaced by the following:

• (a) public health and safety, the environment, international relations and national defence and security are unlikely to be compromised;

(2) Paragraph 3(1)(c) of the Regulations is replaced by the following:

• (c) the aggregate quantity of Schedule 1 chemicals that may be produced does not exceed 10 kg per year per facility; and

(3) Section 3 of the Regulations is amended by adding the following after subsection (3):

Licence

(4) The National Authority shall assign a number and a date of issue to each licence.

2 The portion of subsection 4(1) of the Regulations before paragraph (d) is replaced by the following:

Licence application

4 (1) A written application for a licence in respect of each facility shall be submitted to the National Authority by the individual who will be responsible for the activities requested in the application. It shall be signed by that applicant and by the individual responsible for the facility, if they are not the same individual, and shall contain

• (a) the following information in respect of the applicant:
  • (i) their full name and any aliases,
  • (ii) their addresses for the last five years,
  • (iii) their citizenship,
  • (iv) their date and place of birth and a copy of their birth certificate or other document that establishes their place and date of birth,
  • (v) a summary of their relevant education and work experience,
  • (vi) the name and address of any entity for which they work and their position, and
  • (vii) their business telephone number, facsimile number and email address;
• (b) the following information in respect of the individual responsible for the facility:
  • (i) their full name and any aliases,
  • (ii) their addresses for the last five years,
  • (iii) their citizenship,
  • (iv) their date and place of birth and a copy of their birth certificate or other document that establishes their place and date of birth,
  • (v) the name and address of any entity for which they work and their position, and
  • (vi) their business telephone number, facsimile number and email address;
• (c) the following information in respect of each individual who will have access to a Schedule 1 chemical in carrying out the activities requested in the application:
  • (i) their full name and any aliases,
  • (ii) their addresses for the last five years,
  • (iii) their citizenship,
  • (iv) their date and place of birth and a copy of their birth certificate or other document that establishes their place and date of birth,
  • (v) the name and address of any entity for which they work and their position, and
  • (vi) their business telephone number, facsimile number and email address;

3 Section 5 of the Regulations is renumbered as subsection 5(1) and is amended by adding the following:

Invalidity of previous licence

(2) On the issuance of a new licence, the previous licence becomes invalid.

4 Paragraphs 8(a) and (b) of the Regulations are replaced by the following:

• (a) shall ensure that the activities authorized by the licence are carried out safely;

5 (1) Subparagraph 9(c)(ii) of the Regulations is repealed.

(2) Paragraphs 9(f) and (g) of the Regulations are replaced by the following:

• (f) ensure that the record referred to in section 10 is retained for five years after the cessation of activities; and
• (g) if a facility ceases to exist within five years after the cessation of activities, provide the National Authority with a copy of the record referred to in section 10 within 30 days after the day on which the facility ceases to exist.

6 Section 10 of the Regulations is replaced by the following:

Record

10 A licensee shall ensure that a record is kept and maintained showing the IUPAC name, CAS registry number (or structural formula if no CAS registry number has been assigned) and quantity of each Schedule 1 chemical produced, used, acquired, possessed, transferred, exported, imported or destroyed.

7 Subsection 13(1) of the Regulations is replaced by the following:

National Authority may issue or amend

13 (1) If immediate measures involving a Schedule 1 chemical are required in order to prevent the compromising of public health and safety, the environment, international relations or national defence and security, the National Authority shall issue or amend a licence to authorize those measures.

8 (1) The portion of subsection 14(1) of the Regulations before paragraph (a) is replaced by the following:

Suspension of licence

14 (1) The National Authority shall suspend a licence if public health and safety, the environment, international relations or national defence and security is likely to be compromised by

(2) Paragraph 14(1)(b) of the Regulations is amended by adding “or” at the end of subparagraph (i), by striking out “or” at the end of subparagraph (ii) and by repealing subparagraph (iii).

9 (1) The portion of subsection 15(1) of the Regulations before paragraph (a) is replaced by the following:

Cancellation of licence

15 (1) The National Authority shall cancel a licence if public health and safety, the environment, international relations or national defence and security is compromised by

(2) Paragraph 15(1)(b) of the Regulations is amended by adding “or” at the end of subparagraph (i), by striking out “or” at the end of subparagraph (ii) and by repealing subparagraph (iii).

(3) Paragraph 15(2)(c) of the Regulations is replaced by the following:

• (c) no later than 30 days after the cancellation, provide to the National Authority a copy of the record referred to in section 10.

10 Section 17 of the Regulations is renumbered as subsection 17(1) and is amended by adding the following:

Decision on review

(2) The National Authority shall confirm, vary or rescind its decision and provide written reasons to the person who requested the review within 30 days after the National Authority’s receipt of the request.

11 Paragraph 18(c) of the Regulations is replaced by the following:

• (c) the acquisition, possession and use of a Schedule 1 chemical by a peace officer to the extent necessary for the administration or enforcement of the law.

12 (1) Subparagraph 19(1)(e)(vi) of the French version of the Regulations is replaced by the following:

• (vi) la description des installations de stockage des produits du tableau 1 et des précurseurs figurant aux tableaux 1, 2 ou 3 des Tableaux de produits chimiques de l’Annexe sur les produits chimiques de la Convention utilisés pour leur fabrication,

(2) Clause 19(1)(e)(ix)(E) of the Regulations is replaced by the following:

(E) the quantities received from and supplied to other facilities in Canada, including the quantity of each shipment, its purpose and the name of the other facility,

(3) Paragraph 19(1)(h) of the Regulations is repealed.

Coming into Force

13 These Regulations come into force on the day on which they are registered.

REGULATORY IMPACT ANALYSIS STATEMENT

(This statement is not part of the Regulations.)

Issues

In 2007, the Standing Joint Committee for the Scrutiny of Regulations (SJCSR) identified a number of issues, mostly editorial, related to redundancy, grammar, and differences between the English and French versions of the Schedule 1 Chemicals Regulations (Chemical Weapons Convention) [the Regulations]. The SJCSR recommended amendments to the Regulations that would improve clarity. In reviewing the SJCSR’s recommendations, Global Affairs Canada (GAC) identified additional non-substantive amendments that would aim to improve the precision and clarity of the Regulations.

Background

Canada signed the Chemical Weapons Convention (CWC) in January 1993 and ratified it in September 1995. The CWC entered into force on April 29, 1997, and presently has 192 State Parties. The CWC provides a comprehensive international regime for the verification of destruction of chemical weapons by declared possessor states, as well as for the verification of select industrial sites and research facilities to ensure that they are not used for clandestine production of chemical warfare agents.

Canada adopted the Chemical Weapons Convention Implementation Act (CWCIA) in 1995 in order to meet its international obligations with regard to disarmament and non-proliferation of chemical weapons under the CWC. The CWCIA was brought into force on January 1, 2001, with the exception of section 8, as additional time was required to prepare the associated Regulations. Section 8 of the CWCIA makes it illegal for any person to produce, use, acquire or possess a Schedule 1 chemical, such as nerve agents like sarin, soman, or VX; blister agents like sulphur mustard; or toxins such as saxitoxin or ricin, except as authorized by, or pursuant to regulations made under paragraph 18(a) of the CWCIA. Paragraph 18(a) provides that the “Governor in Council may make regulations for carrying out and giving effect to the provisions of the Convention and, without limiting the generality of the foregoing, may make regulations (a) prescribing conditions under which activities referred to in subsection 8(1) may be carried on, providing for the issue, suspension and cancellation of licences governing the carrying on of any such activity and prescribing the fees or the manner of calculating the fees to be paid in respect of any such licence.” To bring section 8 into force, the Regulations were made. The Regulations set out a series of rules covering such issues as the national limit on Schedule 1 chemicals that can be held at any time in Canada (1 tonne), authorized activities not requiring a licence, such as acquisition and possession of saxitoxin or ricin if the chemical is not extracted or for forensic activities by law enforcement agents, activities requiring a licence, conditions governing licence applications, information required by the National Authority for a new licence or renewal applications, and time limits. The Regulations also set out the obligations of licence holders, particularly as regards cessation of activities, domestic transfers, exports and imports and conditions under which licences can be suspended or cancelled.

The Regulations came into force on July 1, 2004, and with that section 8 of the CWCIA as well. The Regulations have allowed the Canadian National Authority, designated under section 3 of the CWCIA by the Minister of Foreign Affairs, to implement Canada’s obligations under the CWC to control the use, production, possession, acquisition and transfer of Schedule 1 chemicals. The Regulations have been successfully implemented since 2004 and no operational or interpretational issues have arisen.

Objectives

The proposed amendments to the Regulations will make the modifications recommended by the SJCSR and some additional non-substantive, standardizing/corrective changes identified during the drafting process. These amendments improve clarity in the Regulations and correct differences between French and English versions.

Description

The following are the amendments that are recommended by the SJCSR.

• Amendments mostly of an editorial nature to increase clarity by
  • replacing “or” with “and” in the English version (paragraph 3(1)(a));
  • replacing “or” with “and” between “defence” and “security” in the English version (subsections 14(1) and 15(1));
  • replacing “ainsi que” with “ou” in the French version (subsections 14(1) and 15(1));
  • replacing “is” with “are” in the English version (paragraph 3(1)(a));
  • replacing “produced” with “that may be produced” in the English version and “fabriquée” by “pourrait être fabriquée” in the French version (paragraph 3(1)(c));
  • replacing “all documents, records and reports related to the licence are” with “the record referred to in section 10 is” in the English version and “tous les documents et registres afférents au permis” with “le registre visé à l’article 10” in the French version (paragraph 9(f));
  • replacing “all documents, records and reports related to the licence as soon as practicable” with “the record referred to in section 10 within 30 days after the day on which the facility ceases to exist” in the English version and “la période de cinq ans suivant la cessation d’activités” with “cette période” and “tous le documents et registres afférents au permis dès qu’il lui est possible de le faire” with “de ce registre dans les 30 jours suivant la date à laquelle l’installation a cessé d’exister” in the French version (paragraph 9(g));
  • replacing “sont susceptibles d’être” with “seront probablement” in the French version of subsection 14(1);
  • adding “or” at the end of subparagraph 14(1)(b)(i), and striking out “or” at the end of subparagraph 14(1)(b)(ii);
  • replacing “all documents, records and reports related to the licence” with “a copy of the record referred to in section 10” in the English version and “tous les documents et registres afférents au permis” with “du registre visé à l’article 10” in the French version (paragraph 15(2)(c));
  • replacing “sa” with the plural “leur” in the French version (subparagraph 19(1)(e)(vi)); and
  • replacing “the quantity received from or supplied to other facilities in Canada that shows the quantity of each shipment as well as its recipient and purpose” with “the quantities received from and supplied to other facilities in Canada including the quantity of each shipment, its purpose and the name of the other facility” in the English version and “la quantité reçue d’autres installations au Canada ou fournies à celles-ci, y compris, pour chaque expédition, la quantité, l’installation en cause et le but de l’expédition” by “les quantités reçues d’autres installations au Canada et fournies à celles-ci, y compris, pour chaque expédition, la quantité, le nom de l’installation en cause et le but de l’expédition” in the French version (clause 19(1)(e)(ix)(E)).
• Amendments eliminating differences between the English and French versions by
  • replacing “ne sont” with “ne seront probablement” (paragraph 3(1)(a));
  • replacing “a” with “aura” (French version of the opening portion of subsection 4(1)); and
  • deleting the text “at the facility” which only appears in the English version of paragraph 9(f).
• Amendments removing unnecessary text by replacing paragraphs 8(a) and 8(b) with new paragraph 8(a): “shall ensure that the activities authorized by the licence are carried out safely” in the English version and “veille à ce que les activités autorisées par le permis soient exercées prudemment” in the French version.
• Amendments eliminating irrelevant text by repealing
  • “and provide the National Authority with a copy of the record on request” from section 10; and
  • subparagraphs 9(c)(ii), 14(1)(b)(iii), 15(1)(b)(iii) and paragraph 19(1)(h). These subparagraphs and this paragraph are vague and redundant.
• Amendments adding new paragraphs to increase clarity regarding the content of the licence:
  • a new paragraph after subsection 3(3) that requires the National Authority to assign a number and a date of issue to each licence;
  • a new subsection after 5(1) that makes it clear that on the issuance of a new licence the previous licence becomes invalid; and
  • a new paragraph in section 17 that requires the National Authority to confirm, vary or rescind its decision and provide written reasons to the person who requested a review within 30 days of the national Authority’s receipt of the request.
• Amending paragraphs 4(1) (a), (b) and (c) so that the information required to be provided in applications by the applicant, the individual responsible for the facility and all individuals that would have access to Schedule 1 chemicals is consistent across all three categories. Thus the applicant, the individual responsible for the facility and other individuals who would have access to the Schedule 1 chemicals will have to provide the following information in their applications: the name, aliases, citizenship, date and place of birth, addresses for the last five years, name and address of the entity for which they work, position, business telephone number, business fax number, and business email addresses.
• Amending paragraph 18(c) to clarify the scope of the exemption — the proposed amendment identifies a “peace officer” as the intended individual to whom the exception applies.
• Reformulating subsection 13(1) to clarify the obligations of the National Authority in emergency situations as follows: “If immediate measures involving a Schedule 1 chemical are required in order to prevent the compromising of public health and safety, the environment, international relations, or national defence and security, the National Authority shall issue or amend a licence to authorize those measures” in the English version and “Si une intervention immédiate nécessitant des produits du tableau 1 est exigée afin d’éviter que la santé et la sécurité publiques, l’environnement, les relations internationales ou la défense et la sécurité nationales soient compromis, l’autorité nationale délivre un permis ou modifie un permis existant pour autoriser l’intervention” in the French version.

Additional non-substantive amendments identified during the drafting process:

• replacing “would” with “will” in the English version of subsection 4(1) and paragraph 4(1)(c);
• replacing “or” with “and” in the English version and “ou” with “et” in the French version (clause 19(1)(e)(ix)(E);
• adding the words “une copie de” in front of “son acte de naissance” and “de” in front of “tout autre document…” in the French version of paragraph 4(1)(a); and
• deleting “at the facility” in the English version and “sur les lieux de l’installation” in the French version of section 10.

“One-for-One” Rule

The “One-for-One” Rule does not apply to this proposal, as there is no change in administrative costs to business.

Small business lens

The small business lens does not apply to this proposal, as there are no costs (or insignificant costs) on small business.

Consultation

All Canadian licence holders were consulted on these proposed amendments. None raised any concerns.

Rationale

In 2007, the SJCSR raised a number of issues, mostly editorial, related to questions of redundancy, grammar, clarity and differences between the English and French versions. Upon review, GAC agreed with the SJCSR’s recommendations and identified additional non-substantive amendments to improve the clarity of the regulatory text.

Implementation, enforcement and service standards

There will be no significant changes in the implementation of the amended Regulations. The current practice is that guidance to potential applicants for a Schedule 1 licence is published on the Canadian National Authority web page.

The application will be modified on the web page to reflect any changes to the information that is required from applicants under the amended section 4. All other changes will have no operational impact on applications for a new licence, renewal or amendment of an existing licence or on National Authority decisions on refusal of new licence applications, suspension or cancellation of existing licences.

Contact

C. Andrew Halliday
Deputy National Coordinator
Canadian National Authority
Non-Proliferation and Disarmament Division
Global Affairs Canada
125 Sussex Drive
Ottawa, Ontario
K1A 0G2
Telephone: 343-203-3180
Email: christopherandrew.halliday@international.gc.ca