Proposed amendments to the Export of Substances on the Export Control List Regulations consultation document
1. Context
Environment and Climate Change Canada (ECCC) is proposing to amend the Export of Substances on the Export Control List Regulations (the Regulations). These proposed amendments are intended to reduce regulatory burden, streamline the regulatory text and strengthen Canada’s ability to meet its export obligations under the Rotterdam Convention on the Prior Informed Consent Procedure for Certain Hazardous Chemicals and Pesticides in International Trade, the Stockholm Convention on Persistent Organic Pollutants and the Minamata Convention on Mercury.
The Regulations were developed in 2013, pursuant to the Canadian Environmental Protection Act, 1999 (CEPA), to incorporate provisions relative to the Stockholm Convention, and replaced the Export Control List Notification Regulations and the Export of Substances Under the Rotterdam Convention Regulations (which implemented obligations under the Rotterdam Convention). They were later amended in 2017 to include provisions relative to the Minamata Convention, and again in 2018 to control exports of asbestos, as part of the Government-wide strategy to prohibit asbestos. While certain provisions were amended to improve the Regulations since their publication in 2013, they have not undergone a comprehensive regulatory review.
The Regulations apply to substances listed on the Export Control List (ECL) in Schedule 3 to CEPA. This list is amended from time to time to include additional substances, with the latest proposed amendments having been published in Part I of the Canada Gazette on May 14, 2022. Each amendment to the ECL modifies the scope of the Regulations and has the potential to increase the number of regulatees.
The purpose of the Regulations is to prohibit the export of substances specified in the ECL, or to establish regulatory conditions applicable to the export of those substances, and to implement the export obligations of the Rotterdam Convention, Stockholm Convention and Minamata Convention (the conventions).
In 2024, ECCC completed its review of the Regulations as per the Regulatory stock review plan 2019 to 2029 and beyond. The goal of this review was to determine the effectiveness of the current Regulations in achieving the stated objectives and to evaluate and reduce regulatory burden. The regulatory stock review identified issues with:
- the clarity and readability of the Regulations
- the administrative burden associated with the requirement to provide notices of proposed export
- the implementation of Canada’s export obligations under the conventions
The outcome of the review was therefore to recommend amending the Regulations, which has led to the development of this consultation intended to solicit views on ECCC’s proposals to address these issues, as well as feedback and perspectives from stakeholders on ways to further improve and modernize the Regulations.
2. Purpose
The purpose of this consultation is to solicit feedback from stakeholders and interested individuals regarding the proposals to amend the Regulations. Please submit comments by March 1, 2025, (75 days comment period) to SEC-ECS@ec.gc.ca.
3. Background
The Regulations establish export controls on substances regulated in Canada and implement export obligations under the conventions. These export controls apply to substances identified on the ECL, as well as mixtures and products containing them.
The ECL in Schedule 3 to CEPA specifies the substances subject to export controls under CEPA and the Regulations.
The ECL contains substances grouped in 3 parts:
- Substances in part 1 are subject to a prohibition on their use in Canada
- as per CEPA, these substances can only be exported for the purpose of destruction or to comply with a direction issued by the Minister of the Environment
- Substances in part 2 are subject to an international agreement requiring notification or the consent of the importing country, such as the Rotterdam Convention
- Substances in part 3 are subject to domestic controls which restrict their use in Canada
The procedures for exporting a substance vary depending on the part of the ECL to which the substance is listed and the requirements under the Regulations.
For more information on the ECL and the Regulations, please consult the Guidance Document for Exporters.
3.1. Rotterdam Convention
Canada is Party to the Rotterdam Convention, which contains obligations for exports of substances listed in Annex III of the Convention as well as substances subject to domestic controls that prohibit or severely restrict their use. The Regulations establish conditions for exports to a country that is Party to the Rotterdam Convention.
Substances listed in Annex III of the Rotterdam Convention can be found primarily in part 2 of the ECL and their exports are subject to the Prior Informed Consent Procedure. Canada is therefore obligated to ensure exports respect import decisions of importing Parties (that is, consent, no consent or consent under conditions).
For substances that are subject to a domestic prohibition or severe restriction and that are not listed in Annex III of the Rotterdam Convention, Canada is obligated to provide a notification of export to importing Parties prior to the export. These substances are listed in part 1 or part 3 of the ECL.
3.2. Stockholm Convention
Canada is also Party to the Stockholm Convention which contains obligations to control the export of persistent organic pollutants (POPs) listed to Annex A or Annex B of that Convention. The Regulations prohibit exports that would contravene Canada’s obligations under the Stockholm Convention.
These substances can be listed in parts 1, 2 or 3 of the ECL. POPs listed in part 1 of the ECL can only be exported for the purpose of destruction or to comply with a direction under subparagraph 99(b)(iii) of CEPA issued by the Minister of the Environment. Exports of POPs listed in part 2 or part 3 of the ECL that are listed to Annex A or Annex B of the Convention through an amendment that has been ratified by Canada must satisfy the conditions relative to the Stockholm Convention in section 6 of the Regulations.
3.3. Minamata Convention
The Minamata Convention, to which Canada is a Party, contains obligations to control the export of elemental mercury. The Regulations prohibit exports that would contravene Canada’s obligations under this Convention, through the listing of “mixtures that contain elemental mercury (CAS 7439-97-6) at a concentration of 95% or more by weight” in part 2 of the ECL and the conditions relative to the Minamata Convention in section 23 of the Regulations.
The Minamata Convention also provides that appropriate measures should be taken to prohibit the export of certain mercury-added products, including products that contain mercury compounds, according to specific timelines. For regulatory certainty, ECCC is considering amending the Regulations to prohibit exports that would contravene Canada’s obligations under this Convention.
4. Proposed amendments
ECCC is seeking feedback from stakeholders on the following proposed changes to the Regulations:
- Clarity and readability: Certain provisions of the Regulations have been identified as needing clarification or reorganization, therefore the proposals aim to ensure that the Regulations are consistent and understandable
- Regulatory requirements: Concerns have been raised about the administrative burden related to the notification process. Changes are proposed to minimize, to the extent possible, administrative burden, while ensuring relevant information is provided to meet the Regulations’ objectives
- Canada’s export obligations under the conventions and domestic export policy: Certain requirements of the Regulations have been identified as needing improvement to achieve greater certainty with respect to Canada’s compliance with its export obligations under the conventions
4.1. Clarity and readability
ECCC has identified the following areas where regulatory changes could improve clarity and readability of the Regulations. Stakeholders are invited to identify any other aspects of the Regulations that could be clarified, by answering the following guiding questions:
- Is there terminology in the Regulations which you think should be clarified
- Are there specific provisions in the Regulations which are unclear
4.1.1. Overall structure of the Regulations
To improve the clarity and readability of the Regulations, ECCC is considering modifying their structure so that provisions prohibiting certain exports are grouped together and presented at the beginning of the Regulations. This would allow exporters to quickly identify which exports are prohibited, without having to go through all sections of the Regulations. For example, the conditions relative to the Minamata Convention, currently in section 23 of the Regulations, would be moved before the provisions related to the conditions relative to the Rotterdam Convention and the permitting regime.
4.1.2. Permitting regime
The permitting regime under the Regulations was initially developed to ensure that Canada’s export obligations under the Rotterdam Convention were met. This regime was expanded in 2018 to include certain exports of asbestos without undergoing a comprehensive review. ECCC is proposing to restructure the provisions pertaining to the permitting regime so that it better consolidates the conditions relative to the export of asbestos and the conditions relative to the Rotterdam Convention.
4.1.3. Prohibited exports
The conditions relative to the Stockholm Convention and the Minamata Convention in sections 6 and 23 of the Regulations allow exports for which prior notice has been provided and that are permissible under the respective convention. Similarly, the export of substances in part 1 of the ECL is only allowed for the purpose of destruction or to comply with a direction issued by the Minister of Environment. To increase clarity, ECCC is considering modifying the language of these provisions to reflect that exports that are not covered by an exception are prohibited, akin to how the prohibition pertaining to the export of asbestos is currently presented in section 5.1 of the Regulations.
4.1.4. Exemption for use in a laboratory
The conditions relative to the export of asbestos and the conditions relative to the Stockholm, Rotterdam and Minamata conventions, all have a provision which allows exports for use in a laboratory. ECCC is proposing to standardize the wording of this provision across all sections of the Regulations.
4.1.5. Modernization
Provisions of the Regulations would also be reviewed to ensure that they adequately support electronic submissions and other modernization efforts.
4.2. Regulatory requirements
ECCC has identified potential changes to the regulatory requirements to reduce burden on regulatees and to facilitate the administration and enforceability of the Regulations. Stakeholders are invited to review the proposals being considered, and to provide comments on other aspects of the regulatory requirements that could be improved.
4.2.1. Simplified notice of proposed export
One of the major issues identified through the regulatory stock review exercise and raised by exporters of substances on the ECL, is the administrative burden associated with the obligation under subsection 101(1) of CEPA to submit a notice of proposed export, irrespective of the export being subjected to controls under the conventions the Regulations implement. Notably, stakeholders have expressed that providing estimated quantities is especially burdensome in cases where a substance is found in multiple products. While no exemptions can be provided from the requirement to provide prior notice without amending CEPA, ECCC is considering simplifying the notification process for certain export situations.
The information currently requested as part of this requirement is set out in Schedule 1 of the Regulations and needs to be provided to the Minister at least 7 days before the export, if the person holds a permit issued under the Cross-border Movement of Hazardous Waste and Hazardous Recyclable Material Regulations, or in any other case, 15 days before the export.
The requirements associated with the notice of proposed export would be simplified for certain situations, by removing the requirement to provide an estimated quantity of the substance to be exported and by allowing for a notice to be given on multiple shipments expected throughout a calendar year.
Under this proposal, the following data elements, which are needed for ECCC to fulfill the requirement under section 103 of CEPA to report on exports of substances on the ECL, would be requested:
- Name and contact information of the person proposing to export a substance
- Name of the substance exported
- Country of destination
- Expected dates of export
- An indication of the applicable export scenario for which a simplified notice can be submitted
ECCC has identified the following scenarios where a simplified notice of proposed export could be helpful to alleviate the regulatory burden. Note that these scenarios would only be applicable for substances listed in part 2 or part 3 of the ECL, given that substances listed in part 1 are subject to stricter controls that prohibit their export, except for destruction or to comply with a ministerial direction. Additionally, the conditions relative to the export of asbestos and the conditions relative to the Stockholm, Rotterdam and Minamata conventions and their requirements need to be taken into account.
- Substance contained in a manufactured item that is neither subject to the conditions relative to asbestos nor to conditions relative to the conventions
- Substance for use in a laboratory for analysis, in scientific research or as a laboratory analytical standard, if the quantity exported for those purposes by the person during the calendar year does not exceed 10 kg
- Substance present in trace amounts in a product
- Substance which is, or is contained in, a hazardous waste or hazardous recyclable material regulated by the Cross-border Movement of Hazardous Waste and Hazardous Recyclable Material Regulations
In addition to feedback on the scenarios described above, ECCC would also be interested in comments on the following questions:
- What limitations are you currently facing, or do you expect to be facing, in completing a notice of proposed export as per the current requirements
- Are there other scenarios where a simplified notice of proposed export would help alleviate the regulatory burden
- For each ECL substance, if known, how many exports do you expect for each scenario over a one-year period
4.2.2. Information requested in the notice of proposed export
Additionally, with the intent of facilitating the administration of the Regulations, ECCC is considering the following changes to the information required in the notice of proposed export in Schedule 1 of the Regulations:
- in paragraph 3(a), if the substance is part of a group of substances listed on the ECL, provide the specific name of the substance and its CAS registry number, if known
- in paragraph 3(e)(ii), if the purpose of the export falls under “another use”, specify the use
- in paragraph 3(f), indicate if the substance is also exported in accordance with a permit issued under the Cross-border Movement of Hazardous Waste and Hazardous Recyclable Material Regulations
- in a new paragraph, an indication of the exemption the export falls under for conditions relative to the Rotterdam and Minamata conventions, if applicable
- this would be similar to how this type of information is requested for the conditions relative to exports of asbestos and the Stockholm Convention
4.2.3. Permit application
ECCC is also considering requesting additional information through the permit application process, to facilitate the administration of the Regulations and their enforceability.
A certification that the exporter holds the liability insurance referred to in section 20 of the Regulations would be required in the permit application.
Additional information would be requested for products exported to service military equipment abroad for the purposes of a military operation (subsection 5.3(1)(c) of the Regulations), in line with the requirements under section 18 of the Prohibition of Asbestos and Products Containing Asbestos Regulations:
- name and a description of the military equipment that will be serviced with each product referred to in the application
- the name and description of each type of product referred to in the application
- evidence, with respect to each type of product, demonstrating that there is no technically or economically feasible asbestos-free alternative available at the time of the permit application
4.2.4. Exemption for military equipment
An exemption for the export of military equipment was originally added to the Regulations with respect to the conditions relative to the export of asbestos. Under that section of the Regulations, military equipment means “an aircraft, ship, submarine or land vehicle designed to be used in combat or in a combat support role”, as defined under section 1 of the Prohibition of Asbestos and Products Containing Asbestos Regulations.
Other ECCC regulations, such as the proposed Regulations Amending the PCB Regulations provide a different definition of military equipment than the one currently reflected in the Regulations. This definition reads as “equipment that is designed to be used in a combat or combat support function”.
It is therefore proposed to replace the definition of “military equipment” under the Regulations, from: “an aircraft, ship, submarine or land vehicle designed to be used in combat or in a combat support role”, to “equipment that is designed to be used in a combat or combat support function”.
4.3. Canada’s export obligations under the conventions
ECCC is proposing the following regulatory changes to achieve greater certainty with respect to Canada’s compliance with its export obligations under the conventions. Stakeholders are invited to review the proposals being considered, and to provide comments related to Canada’s implementation of its export obligations under the conventions.
4.3.1. Stockholm Convention
Some POPs are listed in part 1 of the ECL, and while part 1 substances may only be exported for the purpose of destroying the substance or complying with a ministerial direction, ECCC is proposing to clarify that these substances are subject to the conditions relative to the Stockholm Convention. This would mean that the following information would be requested through the notice of proposed export for exports of part 1 substances for destruction:
- Information on the name and civic address of the facility at which the disposal will take place
- The method that will be used to dispose of the substance
This would ensure that the same level of information is collected for part 1 substances, as for part 2 and part 3 substances for this type of export.
In addition, under the Stockholm Convention, specific exemptions are listed to Annex A or Annex B along with the substance and expire after a certain time. These expired specific exemptions are still “listed” in the Convention, but they appear in grey text on the Register of specific exemptions to denote that they are no longer in effect. ECCC is proposing to clarify that the specific exemptions must also be in effect for paragraphs 6(2)(a) and 6(2)(b) of the Regulations to apply. These paragraphs outline the conditions that must be met for an export of a POP listed to Annex A or B and ratified by Canada to be allowed, in cases where a specific exemption or acceptable purpose applies under the Stockholm Convention.
4.3.2. Rotterdam Convention
Substances listed in Annex III of the Rotterdam Convention are listed for either their use as a pesticide, use as an industrial chemical, or both. The prior informed consent procedure of the Rotterdam Convention applies when a substance is exported for the category of use(s) for which it is listed in Annex III. However, a substance listed in Annex III of the Rotterdam Convention may also be subject to domestic measures severely restricting or banning its use in a different category than the one that it is listed under in the Convention. In this situation, an export notification would need to be submitted to the importing Party and information would need to accompany the export, in accordance with Canada’s obligations under the Convention. In order to obtain the information needed in the export notification, a permit would be required to export the substance.
As the Regulations do not currently account for this situation, ECCC is considering repealing section 8 of the Regulations and adjusting the rest of the permitting scheme accordingly. This would essentially lead all exports that are subject to the conditions relative to the Rotterdam Convention to require a permit, except for substances exported for the purpose of complying with a ministerial direction.
4.3.3. Minamata Convention
ECCC is considering harmonizing export controls on products and manufactured items containing “Mixtures that contain elemental mercury (CAS 7439-97-6) at a concentration of 95% or more by weight” with the controls established under the Products Containing Mercury Regulations (PCMR), to ensure Canada’s continued compliance with the Minamata Convention. Specifically, ECCC is considering revising the scope of section 23 of the Regulations to include products containing mercury compounds, as well as restricting the exemption for manufactured items in paragraph 23(c) of the Regulations, to ensure that products containing mercury that are prohibited domestically under the PCMR, are also prohibited for export. Under this proposal, controls on the export of products that are not under the scope of the PCMR but are restricted under other federal ActsFootnote 1 and regulations, such as cosmetics, pesticides, biocides and topical antiseptics would also be introduced, in line with the requirements of the Convention.
5. Providing feedback and contact information
ECCC is seeking your views and comments on the proposed regulatory changes. In addition, stakeholders are invited to provide comments on other aspects of the Regulations, with a view to improve the effectiveness of the Regulations in achieving their stated objectives. This could be done, for example, by answering the following questions:
- Are there obstacles that may affect your ability to meet any of the proposed changes to the regulatory requirements
- What are the costs associated with complying with the current Regulations
- Would the proposed changes lead to an increase or decrease in compliance costs? What would be the associated costs (estimated)
- Are there impacts of the proposed regulatory changes that may be considered as unintended (positive or negative) that ECCC should be made aware of
- Are there other aspects of the Regulations not discussed in the present document that could be improved or clarified
Please also include the following information with your submission:
- size (number of employees) of your organization
- number of ECL substances your organization is exporting
- number of exports of ECL substances per year
You are invited to provide feedback and perspectives on the key issues described in this document by March 1, 2025.
Please use the email or mailing address below to send your comments or questions, or if you wish to be added/deleted from our mailing list to receive information related to the Regulations. Please indicate “Consultation on Proposed Amendments to the Export of Substances on the Export Control List Regulations” in the subject line of your message.
Email: SEC-ECS@ec.gc.ca
Telephone: 1-819-938-4228
Mailing address:
Ozone Layer Protection and Export Controls Program
Chemical Production and Products Division
Environment and Climate Change Canada
351 St. Joseph Blvd.
Gatineau QC K1A 0H3
6. Additional information
Websites:
- Export Control List
- Export of Substances on the Export Control List Regulations
- Canadian Environmental Protection Act, 1999
- Rotterdam Convention on the Prior Informed Consent Procedure for Certain Hazardous Chemicals and Pesticides in International Trade
- Stockholm Convention on Persistent Organic Pollutants
- Minamata Convention on Mercury
Page details
- Date modified: