Regulations Amending the Export Permits Regulations: SOR/2023-118

Canada Gazette, Part II, Volume 157, Number 13

Registration
SOR/2023-118 June 2, 2023

EXPORT AND IMPORT PERMITS ACT

P.C. 2023-522 June 1, 2023

Her Excellency the Governor General in Council, on the recommendation of the Minister of Foreign Affairs, makes the annexed Regulations Amending the Export Permits Regulations under paragraphs 12(a)^{footnote a} and (b)^{footnote b} of the Export and Import Permits Act ^{footnote c}.

Regulations Amending the Export Permits Regulations

Amendments

1 (1) The definitions controlled goods and Minister in section 1 of the Export Permits Regulations ^{footnote 1} are repealed.

(2) The definition Liste in section 1 of the French version of the Regulations is replaced by the following:

Liste

La Liste des marchandises et technologies d’exportation contrôlée. (List)

(3) Section 1 of the Regulations is amended by adding the following in alphabetical order:

DPA controlled goods

has the same meaning as controlled goods, as defined in section 35 of the Defence Production Act. (marchandises contrôlées de la LPD)

2 Sections 2 to 15 of the Regulations are replaced by the following:

2 (1) These Regulations do not apply to the exportation of

• (a) softwood lumber products that are described in item 5104 of Group 5 of the schedule to the List; or
• (b) any goods that are referred to in items 5200 to 5210 of Group 5 of the schedule to the List.

(2) Paragraph (1)(a) ceases to have effect on the day item 5104 of Group 5 of the schedule to the List is repealed.

Application for a Permit: Strategic and Military Goods and Technology

3 (1) This section does not apply to the exportation of goods referred to in subsection 4(1).

(2) An applicant for a permit must submit to the Minister a duly completed and signed application form, provided by the Minister, containing the following information:

• (a) the date on which the application form is completed;
• (b) the applicant’s name, address, telephone number, email address and any facsimile number and any identifier number assigned by the Minister and, if the applicant is a corporation, the name and telephone number of a contact person familiar with the application;
• (c) if the applicant is applying for a permit on behalf of, or for the use of another person or corporation who will export or transfer the goods or technology, the name, address, telephone number, email address and any facsimile number of the other person or corporation and any identifier number assigned by the Minister and the name and telephone number of a contact person familiar with the application;
• (d) the name, address, telephone number, email address and any facsimile number of each consignee and the name and telephone number of a contact person associated with the consignee who is familiar with the application;
• (e) the country in which the goods or technology are to be used or the country of final destination;
• (f) for each type of separately identifiable goods or technology,
  • (i) their country of origin and, if any portion of them is of United States origin and is included in item 5400 of Group 5 of the schedule to the List, their proportion to the total cost of the goods or technology, expressed as a percentage,
  • (ii) if they are included in the schedule to the List, their corresponding item number in the Guide,
  • (iii) a description of the goods and technology including, as applicable, their purpose and technical specifications, with sufficient detail to disclose their true identity and in terms that avoid the use of trade names, technical names or general terms that do not adequately describe them,
  • (iv) the quantity, unit value and total market value of the goods or technology,
  • (v) the factory where the goods or technology were made or the first shipping point in Canada, and
  • (vi) the approximate mass, net weight or volume of the goods or technology;
• (g) an indication of the means by which the permit should be sent to the applicant or the exporter; and
• (h) information to establish that the export or transfer of the goods or technology is consistent with the purpose for which the export or transfer of the goods or technology is controlled, consisting of one or more of the following:
  • (i) an International Import Certificate,
  • (ii) an End-use Certificate,
  • (iii) an End-use Statement,
  • (iv) a copy of the contract of sale between the applicant or the exporter and the person from whom the applicant or the exporter purchased the goods or technology,
  • (v) a copy of the contract of sale between the applicant or the exporter and the person to whom the applicant sold the goods or technology for export or transfer,
  • (vi) a copy of the commercial invoice that relates to the export or transfer,
  • (vii) a copy of a letter of credit or other financial documentation which identifies the Canadian and foreign financial institutions involved in the export or transfer,
  • (viii) the name and address of the person from whom the applicant or exporter acquired the goods or technology,
  • (ix) the intended end-use of the goods or technology by their consignee,
  • (x) the intended end-use location of the goods or technology, if different from the location of the consignee,
  • (xi) an import permit issued by the government of the country for which the goods or technology are destined, or
  • (xii) an in-transit authorization.

(3) In addition to the application form, the applicant must submit to the Minister

• (a) a declaration that, to the best of their knowledge, the goods or technology will enter into the economy of the country under paragraph (2)(e) that is identified in the application form, and will not be transhipped or diverted from that country;
• (b) in the case of goods or technology referred to in Group 2, Group 6 or item 5504 of Group 5 of the schedule to the List:
  • (i) if they are DPA controlled goods
    • (A) proof of registration or exemption from registration under the Defence Production Act and the Controlled Goods Regulations; or
    • (B) proof that the applicant or the exporter is a person that Part 2 of the Defence Production Act does not apply to, under section 36 of that Act; and
  • (ii) if they are not DPA controlled goods, a declaration attesting that the applicant has reviewed the Defence Production Act and determined that they are not exporting or transferring DPA controlled goods; and
• (c) a United States export authorization in respect of the following goods
  • (i) any DPA controlled goods that are of United States origin,
  • (ii) any goods incorporating DPA controlled goods of United States origin, or
  • (iii) any goods manufactured in Canada using any DPA controlled goods of United States origin.

Application for a Permit: Certain Forest Products

4 (1) This section applies to the exportation of goods that are referred to in items 5101 to 5103 of Group 5 of the schedule to the List.

(2) An applicant for a permit must submit to the Minister a duly completed and signed application form, provided by the Minister, containing the following information:

• (a) the date on which the application form is completed;
• (b) the applicant’s name, address, telephone number, email address and any facsimile number and any identifier number assigned by the Minister, and if the applicant is a corporation, the name and telephone number of a contact person who is familiar with the application;
• (c) if the applicant is applying for a permit on behalf of, or for the use of another person or corporation who will export the goods, the name, address, telephone number, email address and any facsimile number of the other person or corporation and any identifier number assigned by the Minister, and the name and telephone number of a contact person who is familiar with the application;
• (d) for logs harvested in British Columbia, the customs office at which the logs will be exported;
• (e) the name, address, telephone number, email address and any facsimile number of each consignee, and the name and telephone number of a contact person associated with the consignee who is familiar with the application;
• (f) the country in which the goods are to be consumed or the country of final destination;
• (g) for logs harvested outside of Canada, the country of origin of the logs;
• (h) for logs harvested in Canada, the province in which the logs have been harvested;
• (i) a description of the goods, including species, total quantity, total volume or net weight and total value of the goods;
• (j) for logs harvested in British Columbia, the sort, grade and scale of the logs and any other identifier marks, including timber mark, boom number and load slip number;
• (k) for logs harvested in British Columbia, the name of the transportation company and means of transport;
• (l) for logs harvested in British Columbia, their anticipated date of export;
• (m) an indication of the means by which the permit should be sent to the applicant or the exporter;
• (n) for logs harvested in British Columbia, any documentation of authorization, recommendation or consent from the applicable authority; and
• (o) for logs harvested on provincial lands in British Columbia,
  • (i) if the applicant is not the permit holder listed on the provincial permit, written confirmation from the provincial permit holder that the applicant is authorized to submit the application on their behalf,
  • (ii) if the consignee identified under paragraph (e) differs from the consignee listed on the provincial permit, written confirmation from the provincial permit holder that the consignee listed on the application is accurate, and
  • (iii) a detailed summary of the scale of the logs.

Shipping Requirements

5 At the time of exportation of the goods, including goods containing controlled technology, the exporter must provide the permit to an officer at the customs office, within the reporting time frames specified in the Reporting of Exported Goods Regulations.

6 The officer at the customs office must, when the permit is presented, ensure that it is valid and compare the information in the permit with that contained in the prescribed form under the Customs Act.

Amendments to Permits

7 A permit holder may, in writing, before the expiry date shown on the permit, make a request to the Minister to amend the permit. The request must state the terms or conditions of the permit in respect of which the amendment is being requested and the reasons for the amendment.

Coming into Force

3 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

The Export Permits Regulations (the Regulations) are established under the authority of paragraphs 12(a) and 12(b) of the Export and Import Permits Act (EIPA). These Regulations establish requirements on the information that permit applicants must provide as part of the export permit application process, and the procedures governing the issuance and use of exports permits for certain goods and technology listed on the Export Control List, notably for “Strategic and Military Goods and Technology” and “Certain Forest Products.” Separate regulations also exist that address other specific items on the Export Control List, for example the Export Permit (Steel Monitoring) Regulations, the Export Permit Regulations (Non-strategic Products) and the Export Permit Regulations (Softwood Lumber Products 2015).

Concerns of the Standing Joint Committee for the Scrutiny of Regulations

The Standing Joint Committee for the Scrutiny of Regulations (the Committee) expressed concerns that paragraph 3(1)(j) of the Regulations falls outside of the scope of the Governor in Council’s authority under the EIPA. Paragraph 12(a) of the EIPA provides the Governor in Council with the authority to make regulations “prescribing” the information to be furnished by permit applicants. The Committee considers that the power to “prescribe” information requires the Governor in Council to precisely define what information is required from permit applicants. In the Committee’s view, paragraph 3(1)(j) of the current Regulations fails to “prescribe” information, because (1) it provides that certain information must be furnished if the Minister exercises discretion to require it; and (2) it uses the word “including,” which indicates that there is additional information not specified in the Regulations that may be required from permit applicants. Global Affairs Canada (GAC) has exchanged a number of letters with the Committee and proposed language that it believes could address the Committee’s concerns. In particular, the Committee has advised that they would like the Regulations to contain an exhaustive list of information requirements.

The Committee has raised a separate issue regarding an inconsistency between the English and French versions of the Regulations. A previous amendment to paragraph 3(2)(b) of the Regulations added the requirement to provide “proof of registration or exemption from registration under the Controlled Goods Regulations” when exporting “controlled goods” as defined under the Defence Production Act. The French version of paragraph 3(2)(b) differs from the English version as it does not reflect the requirement that the applicant must provide proof of registration or exemption, but instead states that the permit applicant must provide “a copy of the certificate of registration or of exemption from registration.”

Modernization of the Regulations

These regulatory amendments also modernize the Regulations, in particular by (1) updating the Regulations to make them clearer with respect to the information required for the respective goods and technology covered by the Regulations; and (2) reflecting current policy and practice.

Objective

These Regulations are intended to reflect current operational requirements, including those described in the Export and Brokering Controls Handbook (the Handbook), and align with information already required from applicants in practice and policy and in the New Export Controls Online System (NEXCOL). They also respond to the concerns raised by the Committee regarding two previous amendments to the Regulations (SOR/2001-34 and SOR/2003-216). The benefits of the regulatory amendments are to increase regulatory clarity and certainty, and to modernize requirements for Canadian exporters.

Description

Concerns of the Standing Joint Committee for the Scrutiny of Regulations

The amendments address the concern of the Committee that the Regulations fall outside of the scope of the Governor in Council’s authority (i.e. are ultra vires). GAC amends the Regulations to create an exhaustive list of information elements to be furnished by permit applicants.

Amendments are also made to the French version of the Regulations to address the Committee’s concern that paragraph 3(2)(b) of the French version of the Regulations is inconsistent with the English version of that paragraph.

Modernization of the Regulations

It is important to note that the changes to the regulatory text in this initiative result in minimal process changes for permit applicants. The amendments also update some outdated elements in the Regulations and align them with current policies and practices, as encoded in GAC’s electronic permitting system, i.e. NEXCOL. Updating the Regulations also improves clarity for exporters and facilitates compliance.

Key changes to the Regulations

The Regulations apply to both strategic and military goods and technology, as well as to certain forest products. Consequently, GAC created two separate sections for these goods and technology: section 3 for “Strategic and Military Goods and Technology” and a new section 4 for “Certain Forest Products.” Both sections comprise an exhaustive list of information elements to be furnished by permit applicants for the export of the relevant group of goods.

For the section on “Strategic and Military Goods and Technology,” the amendments specifically remove the requirement to provide the information listed in subparagraphs 3(1)(j)(vi) and 3(1)(j)(x) of the Regulations, as this information is no longer required under NEXCOL.

Furthermore, the new paragraph that replaces former paragraph 3(1)(j) of the Regulations allows GAC to request a number of specific, additional documents in certain instances. These documents can be beneficial for GAC’s assessment of an export permit application. In particular these documents include a copy of the commercial invoice, a copy of the purchase order and a copy of the letter of credit or other financial documentation, including bank transfers or authorizations.

The new section 4 in the Regulations titled “Certain Forest Products” has similarly been developed to reflect current practice and the data requirements of the NEXCOL system. An exhaustive and itemized list of documents and information elements are detailed in paragraphs 4(2)(a) through 4(2)(o) of the amended Regulations.

Other elements of the amended Regulations

Updates to tombstone information requirements

From a tombstone information requirement perspective, the amendments would require applicants to provide their email address along with that of the consignee(s). The amendments will also add a requirement to provide a fax number, but this requirement will be preceded by the words “if any” as fax machines have fallen out of use. The term “mass” is added to the provision about “weight” and “volume” to ensure that the proper measurement of exported goods is provided on the export permit application. These amendments ensure that the information requirements are as accurate as possible and are consistent with the recently created Brokering Permit Regulations (SOR/2019-221).

Updates to process issues

From a process perspective, the requirements related to exports by mail or courier service staff were removed from the Regulations, as this is no longer how those processes operate. Exporters must submit their permit along with any other documentation required by the Canada Border Services Agency at a customs office. Furthermore, current portions of the Regulations related to the issuance and loss of permits were removed, as they are no longer relevant due to the electronic nature of the NEXCOL system. The portion related to amendments to permits were modified for the same reason.

Regulatory development

Consultation

From June 18 to July 18, 2022, the Government consulted Canadians via the prepublication of the regulatory amendments in the Canada Gazette, Part I. A single industry response was received expressing concerns of a potential increased regulatory burden on industry in the export permit application process. Global Affairs Canada has confirmed to the respondent that these regulatory amendments do not introduce any significant process changes for permit applicants. In fact, the only additional requirement stemming from these regulatory amendments will be the addition of a check box field in the NEXCOL system for those applicants whose items are not controlled under the Defence Production Act.

Further to the consultation period, two additional minor amendments are being made to the information requirements in the export permit application for the sake of clarity. First, as mentioned in the “Description” section of this text, the term “mass” has been added to provide an additional option for applicants in the subparagraph related to required information on quantification of the items proposed for export (in addition to the existing elements of “weight” and “volume”). Second, further to discussions with Public Services and Procurement Canada, a minor formatting and linguistic amendment has been made to clarify the intent of the paragraph related to the requirement to demonstrate due diligence when exporting Defence Production Act controlled items. In addition, the reference to paragraph 36(a) of the Defence Production Act has been updated to reference the entirety of section 36 of the Defence Production Act to reflect all classes of persons currently excluded from the application of Part II of that Act including paragraph 36(b). Furthermore, the reference to section 36 in its entirety will capture the inclusion of any future additional paragraphs under section 36 of the Defence Production Act.

Some of the updates to the information requirements set out in section 3 of the Regulations were previously consulted in the context of the 2019 prepublication of the Brokering Permit Regulations, which contain a number of similar elements to the amended Regulations. No concerns were raised with these common elements at that time.

Modern treaty obligations and Indigenous engagement and consultation

The amended Regulations do not affect any Indigenous peoples, either positively or negatively, and thus, the duty to consult is not triggered by this regulatory undertaking.

Instrument choice

The previous version of the regulations was outdated. It was necessary to update and clarify the Regulations to avoid the risk of confusion between the regulatory text and policies, forms and electronic system requirements for export permit applicants. Therefore, there is no alternative instrument choice.

Regulatory analysis

Benefits and costs

No cost for industry is expected as a result of this regulatory amendment. The amendments are administrative in nature and are expected to clarify the Regulations for exporters rather than add any significant burden. The updates to the Regulations align the regulatory text with business practice, which has mostly been in place for more than a decade. Minimal costs to the Government are expected for the implementation of these amendments in the form of communications to industry stakeholders and website updates.

Small business lens

The amendments are administrative in nature and clarify the Regulations for exporters rather than add any significant burden. There will be no significant change to the process of applying for permits.

One-for-one rule

The one-for-one rule does not apply, as there is virtually no incremental change in the administrative burden on business.

Regulatory cooperation and alignment

The vast majority of data required from Canadian exporters under the Regulations mirrors the requirements of like-minded countries with rigorous export controls systems.

Strategic environmental assessment

In accordance with the Cabinet Directive on the Environmental Assessment of Policy, Plan and Program Proposals, a preliminary scan concluded that a strategic environmental assessment is not required.

Gender-based analysis plus

No gender-based analysis plus (GBA+) impacts have been identified for this initiative.

Implementation, compliance and enforcement, and service standards

Implementation

The Regulations come into force on the day on which they are registered. On that day, the amended Regulations will match the information requirements used in practice and policy (which are also encoded in NEXCOL) by the Export Controls Operations Division at Global Affairs Canada as part of the permit application process. Global Affairs Canada will send an email to industry associations and all permit applicants through NEXCOL (along with updating the website) to inform the public that the export permit application process is essentially unchanged and to list the few minor changes described above. Permit applications will continue to be assessed on a case-by-case basis and in accordance with assessment considerations laid out in legislation and policy.

Compliance and enforcement

All exports or transfers of goods and technology listed in the Export Control List must be authorized by an export permit. The Canada Border Services Agency and the Royal Canadian Mounted Police are responsible for the enforcement of export controls. Exporting, transferring, or attempting to export or transfer goods and technology identified on the Export Control List without a permit as required by the Act is prohibited and may lead to prosecution.

Service standards

For information on the processing times for permit applications, please consult the latest version of the Handbook, which can be found on the website of the Export Controls Policy Division.

Contact

Judy Korecky
Deputy Director
Export Controls Policy Division
Global Affairs Canada
125 Sussex Drive
Ottawa, Ontario,
K1A 0G2
Telephone: 613‑291‑0347
Email: judy.korecky@international.gc.ca