Consultation document: prohibiting the export of mercury

Official title: Proposed amendments to the Export of Substances on the Export Control List Regulations and the Export Control List

Chemical Production Division
Environment Canada
April 2015

Table of contents

• 1. Introduction
  • 1.1 Purpose
  • 1.2 Objectives
  • 1.3 Assessing administrative burden cost
• 2. Proposed amendments
  • 2.1 Export controls for mercury
  • 2.2 Prior notification of export acknowledgement
  • 2.3 Further amendments to the Export Control List
  • 2.4 Amendments to labelling
• 3. Submission of comments
• 4. Path forward
• Annex 1: Questionnaire for respondents relating to costs linked to the amendments of the Export of Substances on the Export Control List Regulations and the Export Control List

1. Introduction

The Export of Substances on the Export Control List Regulations prescribe the content and manner of export notification requirements under the Canadian Environmental Protection Act, 1999. They also enable compliance with export requirement provisions in international multilateral chemical agreements such as the Stockholm Convention^Footnote 1 and Rotterdam Convention^Footnote 2.

The Export Control List is the list of substances subject to the regulations. It groups substances into three parts:

• Substances in Part 1 are subject to a prohibition on their use in Canada. They can be exported only for destruction or to comply with a direction issued by the Minister under subparagraph 99(b)(iii) of the Canadian Environmental Protection Act, 1999.
• Substances in Part 2 are subject to an international agreement that requires notification or requires the consent of the country of destination before the substance is exported from Canada.
• Substances in Part 3 are subject to domestic controls which restrict their use in Canada.

1.1 Purpose

This consultation process is intended to give interested and affected parties an opportunity to review and provide comments on the proposed revisions to the Export of Substances on the Export Control List Regulations and the Export Control List. The proposed amendments would enable Canada to prohibit exports of elemental mercury with certain exemptions, and improve flexibility for compliance under the regulations by providing a mechanism to allow notified exports to be shipped in less than 30 days. This consultation may address both the nature of the proposed revisions and any ancillary concerns relating to their implementation (for example, administrative practices or policy interpretations).

This consultation also intends to collect information to assist Environment Canada in estimating costs to businesses of completing administrative activities linked to proposed regulatory amendments. Results of the analysis will be reported in a RIAS that will be published in the Canada Gazette, Part I, in conjunction with the proposed regulatory amendments.

1.2 Objectives

These consultations are intended to ensure that the proposed approach and regulatory measures are as effective and straightforward as possible and to enhance protection of the environment and human health.

Environment Canada is committed to ensuring that all initiatives aimed at developing regulatory measures include a process of meaningful and effective consultation with stakeholders.

The proposed regulatory measures may cause the regulated community and governments to incur direct adjustment costs. In addition to environmental and human health benefits, the regulatory measures may also result in benefits to industry, such as reduced warehousing or other compliance costs.

The consultations are an opportunity for Environment Canada to obtain information on the costs and benefits of the proposed regulatory measures to Canadians and to Canadian industry. This feedback will inform economic costs and benefits that will be shared with stakeholders and the public as part of the Regulatory Impact Analysis Statement that will accompany the publication of the final proposed regulatory measures.

1.3 Assessing administrative burden cost

The Treasury Board Secretariat of Canada defines "administrative burden" as including: "planning, collecting, processing and reporting information, and completing forms and retaining data required by the federal government to comply with a regulation."

Administrative costs differ from compliance costs, which are defined as upfront capital costs as well as ongoing maintenance and training that businesses face when complying with a regulation.

In order to quantify changes in administrative burden, federal departments use the Regulatory Cost Calculator, a standardized tool based on the internationally recognized Standard Cost Model methodology. Using the Regulatory Cost Calculator enables consistent burden estimates across federal departments and agencies.

Only new or incremental administrative burden as a result of the proposed regulation is included in the administrative burden cost calculation.

If the proposed regulatory measures have a significant impact on small business,^Footnote 3 the federal government will take special care to ensure that small business needs and capacities are considered. This will be achieved through the analysis of small business realities and consultation at the earliest stages of regulatory design. Consideration will be given to approaches that minimize costs for small business.

2. Proposed amendments

2.1 Export controls for mercury

In September 2014, Environment Canada consulted on a proposal to control trade in mercury^Footnote 4 to meet trade obligations under the Minamata Convention. Two approaches were proposed:

1. The Export Control List and the Export of Substances on the Export Control List Regulations could be amended in order to implement proposed regulatory controls in line with the Convention; or
2. Environment Canada could consider implementing stronger requirements by prohibiting the export of mercury intended for any use.

Having considered the responses from the September 2014 consultation, Environment Canada is proposing to prohibit exports of mercury^Footnote 5 with certain exemptions.

This proposal is based on several considerations. Firstly, by maintaining comprehensive restrictions on the export of mercury and having domestic measures in place to ensure that imported mercury is managed in an environmentally sound manner, Canada would not need to implement new regulatory measures to control imports of mercury to meet the requirements of the Minamata Convention (Article 3.9). As imports of mercury would not be impacted by the proposed export prohibition, there would be no administrative burden for Canadian importers of mercury or government. Secondly, by prohibiting export of mercury, Canada would not contribute to the global volume of mercury available for use. A mercury export ban has already been implemented by the United States (2013) and the European Union (2011), and is also being contemplated by other countries. And lastly, because Canada does not conduct primary mercury mining nor produce elemental mercury intended for use in a product or process, Canada does not produce mercury for export.

The prohibition of exports of mercury and the exemptions outlined below would be implemented through amendment of the existing Export of Substances on the Export Control List Regulations. The Export Control List would also require an amendment to add mercury. Such an amendment would add the following to Part 2 of the Export Control List:

Once the Export Control List is amended to include this entry and the regulations are amended to include a mercury export ban, mercury exports will only be allowed under the exemptions listed below. These exemptions are consistent with the Minamata Convention.

Note that the proposed listing of mercury on the Export Control List would not apply to naturally occurring trace quantities of mercury in such products as non-mercury metals, ores, or mineral products, including coal, or products derived from these materials, and unintentional trace quantities in chemical products.

2.1.1 Exemptions

This prohibition would not apply to exports of mercury, as described above, when:

• contained in a hazardous waste or hazardous recyclable material regulated by the Export and Import of Hazardous Waste and Hazardous Recyclable Material Regulations; or
• exported for use in a laboratory for analysis, in scientific research, or as a laboratory analytical standard, if the total quantity exported does not exceed 10 kg per exporter per calendar year; or
• contained in a manufactured product (for example, cold cathode fluorescent lamps).

Exporters of mercury under these exemptions will be required to provide prior notification of exports.

2.2 Prior notification of export acknowledgement

Section 5 of the Export of Substances on the Export Control List Regulations requires that all exporters of a substance listed on the Export Control List notify the Minister at least 30 days in advance of an export.

Some regulatees have expressed that this obligation can result in holding exports, which are otherwise ready to ship, waiting for the 30-day time period to elapse. 

Amendments to the regulations are being considered which would:

1. Maintain the 30-day notification period; and
2. Enable Environment Canada to acknowledge a notification and issue an authorization to export before the 30 days elapse.

Such a mechanism would allow sufficient time for enforcement action in the event that a notified export was in contravention of the Export of Substances on the Export Control List Regulations or other instruments. It will also allow an export to proceed sooner in a case where the export satisfies the regulations and any other applicable regulations or international treaties to which Canada is a Party.

2.3 Further amendments to the Export Control List

In addition to adding mercury to the Export Control List, a correction to an existing substance name is being proposed. Item 1 in Part 1 of the Export Control List presently reads:

1. Mirex (Dodecachloropentacyclo [5.3.0.0^2,6.0^3,9.0^4,8] decane) (Chemical Abstracts Service (hereinafter "CAS") 2385-85-5)

This will be amended to align with the name used in item 2 of Schedule 1 of the Canadian Environmental Protection Act, 1999. The new listing will read:

1. Dodecachloropentacyclo [5.3.0.0^2,6.0^3,9.0^4,8] decane (Mirex) (Chemical Abstracts Service (hereinafter "CAS") 2385-85-5)

This change will provide additional certainty to exporters that the substance listed in the Export Control List is the substance in Schedule 1.

2.4 Amendments to labelling

Subsection 21(1) of the regulations presently requires certain exports be labeled in either or both official languages and, as far as practicable, at least one of the official languages of the country of destination. Amendments will be proposed to require that the labelling be in both official languages and, as far as practicable, at least one of the official languages of the country of destination.

3. Submission of comments

In soliciting input from stakeholders, Environment Canada has posted a copy of this document on the Environmental Registry and distributed it by email to all known Canadian stakeholders, including representatives from other federal departments, provinces, territories, industry, environmental groups and public advocacy groups.

Please send your comments on this consultation document in writing to either of the following addresses by no later than June 24th.

To assist Environment Canada in better evaluating administrative burden costs, we would request that your organization respond to the attached questionnaire presented in part D of Annex I as part of their response to this consultation. This information will allow Environment Canada to validate any impact on the administrative and compliance burden of the amendments.

4. Path forward

Environment Canada will review and take into consideration all comments received in response to this consultation as well as those from the previous consultation relating to mercury trade controls.

The draft regulations will be pre-published in Part I of the Canada Gazette for a 75-day public comment period. This will provide the next opportunity for stakeholders to comment on the proposed regulatory amendments.

Annex 1: Questionnaire for respondents relating to costs linked to the amendments of the Export of Substances on the Export Control List Regulations and the Export Control List

A. Assessing administrative burden

Under the Red Tape Reduction Action Plan (http://actionplan.gc.ca/en/initiative/reducing-red-tape), the federal government has committed to reducing administrative costs on businesses. Regulatory changes that increase administrative costs on businesses must be offset with equal reductions from within existing regulations in a department's portfolio. Departments are required to consult affected businesses regarding administrative costs of proposed new regulations, or amendments to existing regulations prior to their publication.

Departments are additionally required to determine if proposed regulations impact small businesses. The Treasury Board of Canada defines a small business as any business, including its affiliates, that has fewer than 100 employees or between $30,000 and $5 million in annual gross revenues. Should small businesses be implicated, federal departments are required to consider alternative compliance options to minimize administrative costs and other impacts.

B. Consultation survey

The questionnaire below is intended to collect information on your organization and the administrative activities you may have to undertake in order to comply with the proposed amendments to the Export of Substances on the Export Control List Regulations. Administrative activities include the following tasks:

• learning about the regulation or requirements
• preparing and submitting an application and/or seeking permission to export
• preparing and submitting a notification
• recordkeeping and reporting
• enforcement activities, particularly inspections and audits
• other administrative activities

For each task, the amount of time to complete the task and the frequency with which the task is performed are taken into consideration.

C. Definitions

Administrative burden: The effort required for businesses to demonstrate compliance with administrative requirements of a federal regulation. This can include planning, collecting, processing and reporting information; completing forms; retaining data required by the federal government; filling out licence applications; finding and compiling data for audits; and learning about the requirements.

Small business: Any business, including its affiliates, that has fewer than 100 employees or between $30,000 and $5 million in annual gross revenues.

D. Questionnaire

1. Is your company involved in the following trade activities (choose one)?

   ◻ Imports
   ◻ Exports

   ◻ Both imports and exports
   ◻ None of the above
    

   
   Is your company a subsidiary of another organization (that is, are you affiliated to or owned by another organization)? If yes, please provide the organization's name.

   ◻ Yes; Organization name: ______________________________________
   ◻ No
    

2. How many people does your company employ?

   ◻ < 100 employees
   ◻ 100 to 499 employees
   ◻ ≥ 500 employees
    

3. What is your company's average gross revenue per year [C$]?

   ◻ < $30,000
   ◻ $30,000 to $5 million
   ◻ > $5 million
    

4. Does your company export mixtures containing elemental mercury (CAS 7439-97-6) in which the concentration of elemental mercury is 95% or more by weight?

   ◻ Yes
   ◻ No
    

5. How many times in a year do you export mixtures containing elemental mercury (CAS 7439-97-6) in which the concentration of elemental mercury is 95% or more by weight?

   ◻ 0
   ◻ 1
   ◻ 2
   ◻ 3-4
   ◻ 5 or more
    

6. What total quantity of mixtures containing elemental mercury (CAS 7439-97-6) in which the concentration of elemental mercury is 95% or more by weight do you export in a year?

   ◻ Less than 10 kg
   ◻ 11 to 100 kg
   ◻ More than 100 kg
    

7. Who in your company is responsible for completing paperwork related to your exports (notifications, regulatory submissions, etc.)?

   ◻ Senior management
   ◻ Other management staff
   ◻ Administrative support staff
   ◻ Clerical staff
   ◻ Applied sciences (natural and applied sciences, technical occupations, including engineering)
   ◻ Accountant
   ◻ Lawyer
   ◻ Other, specify: _______________________________________
    

8. Does your company currently have recordkeeping infrastructure and/or equipment (software, computer, filing cabinets, etc.)?

   ◻ Yes
   ◻ No
    

9. Will your company need to upgrade or put in place new infrastructure and/or equipment to comply with recordkeeping requirements in the amended Export of Substances on the Export Control List Regulations?

   ◻ Yes
   ◻ No
    

   If yes, how much do you expect to spend in order to upgrade or put in place the new infrastructure and/or equipment [C$]?

   ◻ < $100
   ◻ $100 to $1,000
   ◻ $1,001 to $10,000
   ◻ > $10,000
    

10. Please provide any other comments you may have regarding administrative costs linked to the proposed amendments to the Export of Substances on the Export Control List Regulations.

11. Would your company realize any savings from an amendment that would allow export before the 30-day notification period elapses?

12. Please provide any general comments you may have regarding the proposed amendments to the Export of Substances on the Export Control List Regulations and the Export Control List.