ARCHIVED — Vol. 146, No. 39 — September 29, 2012

Order Amending Schedule 3 to the Canadian Environmental Protection Act, 1999

Statutory authority

Canadian Environmental Protection Act, 1999

Sponsoring departments

Department of the Environment and Department of Health

REGULATORY IMPACT ANALYSIS STATEMENT

(This statement is not part of the Order.)

1. Background

The Export Control List (ECL) is a list of substances whose exports are controlled because their use in Canada is prohibited or restricted, or because Canada has accepted to control their export under the terms of an international agreement (for example, the Rotterdam Convention (see footnote 1)). Section 100 of the Canadian Environmental Protection Act, 1999 (CEPA 1999) provides the Ministers of the Environment and of Health with the authority to add or delete substances from the ECL by order. These amendments are published in the Canada Gazette.

Two regulations apply to exports of substances listed on the ECL:

  • The Export Control List NotificationRegulations (ECLN Regulations) describe the manner in which to notify the Minister of the Environment of exports of all substances listed in the ECL.
  • The Export of Substances Under the Rotterdam Convention Regulations (ESURC Regulations) apply to exports of substances on the ECL, destined to another Party to the Rotterdam Convention. The main purpose of these Regulations is to ensure that substances on the ECL, subject to the Prior Informed Consent (PIC) procedure, are not exported to Parties to the Convention, unless the importing Party has provided prior consent to the shipment.
  • In August 2011, the proposed Export of Substances on the Export Control List Regulations were published in the Canada Gazette, Part Ⅰ. This new instrument would merge, revise, and streamline the ECLN Regulations and the ESURC Regulations and would introduce new provisions to allow Canada to deliver more effectively on export-related commitments made under the Stockholm Convention. (see footnote 2)

The Rotterdam Convention

The Rotterdam Convention, which entered into force in February 2004, establishes a list of substances (Annex III) that have been banned or severely restricted by some Rotterdam Parties for health and/or environmental reasons. The Convention facilitates information exchange between Parties in which the “prior informed consent” of the importing Party is required prior to export of these substances. This Convention also requires “export notification” through which the exporting Party is obligated to notify and send information to the importing party when exporting a substance subject to domestic prohibition or restriction on use.

2. Issue

Canada has committed to shared responsibility and cooperative efforts to address the international trade of chemicals and pesticides. The ECL in Schedule 3 to CEPA 1999 and the associated regulations help Canada meet its international obligations. (see footnote 3) The Order Amending Schedule 3 to the Canadian Environmental Protection Act, 1999 (hereinafter referred to as the Order) would add the pesticide endosulfan which was recently added to Annex III of the Rotterdam Convention.

3. Objectives

The objective of the Order is to amend the ECL to ensure Canada’s continued compliance with its international obligations under the Rotterdam Convention.

4. Description

The Order would make one addition to the Export Control List. Substances listed to the ECL are grouped in three parts:

  • Part 1 includes substances whose use is prohibited in Canada. Under the authority of CEPA 1999, these substances can only be exported under very limited circumstances (such as for destruction).
  • Part 2 includes substances for which notification or consent for export is required pursuant to an international agreement. These substances are subject to the Prior Informed Consent (PIC) procedure of the Rotterdam Convention, which is an international convention promoting shared responsibility and cooperative efforts amongst Parties in the international trade of certain hazardous chemicals.
  • Part 3 includes substances whose use is restricted in Canada. An example of these substances is tributyltetradecylphosphonium chloride. This substance can be exported subject to the Minister being notified in advance.

The Order would add the pesticide endosulfan (Chemical Abstracts Service No. 115-29-7), which has been added to Annex III to the Rotterdam Convention, to Part 2 of the ECL.

5. Consultation

Stakeholders with a known interest for endosulfan were consulted for 15 days through direct mailings to inform them about the listing of the substance on the ECL and to provide them with the opportunity to comment on the proposal. One comment was received from an environmental non-governmental organization recommending that the listing of endosulfan on the Export Control List include two isomers as listed in Annex A of the Stockholm Convention. These compounds are not listed to the Rotterdam Convention.

Environment Canada responds that these isomers have never been registered individually under the Pest Control Products Act in Canada. Accordingly, all of the prohibitions in respect of these individual isomers as a pest control product under that Act apply, including import and use. Also, they are not individually listed to Annex III of the Rotterdam Convention. Therefore, they are not being added to the Export Control List at this time.

6. Rationale

The addition of endosulfan to the ECL is an effective means of ensuring Canada’s continued compliance with its international obligations under the Rotterdam Convention. To ensure a controlled substance is exported in accordance with Canada’s obligations, it must be listed to the ECL. There is no other existing option for compliance.

The substance endosulfan is not currently manufactured in Canada, but it is imported as a pesticide. However, the use of endosulfan will be phased out in Canada by January 1, 2017. This phase-out is mandatory and respects the common goal between Health Canada’s Pest Management Regulatory Agency, registrants, vendors and users of pesticide products containing endosulfan. Based on this information, no exports are expected. As no Canadian businesses manufacture or export the substance, there is zero burden and the “One-for-One Rule” and small business lens do not apply. The impacts of the Order are estimated to be small in magnitude or non-existent and are discussed qualitatively below.

Industry

There are no known exporters of endosulfan, and it is not manufactured in Canada. Therefore, administrative costs for export permit applications and export notifications are estimated to be zero in the absence of exports.

Competitiveness

The Order is not expected to decrease competitiveness for any regulatee or sector. While there are currently no known exporters of endosulfan, exports could occur subject to the requirements of the applicable regulations.

Government

The cost to Government of the Order would be negligible. Additional costs to administer and enforce the regulations which are linked to the ECL are not expected as a result of the Order. Administrative costs for export permit application and processing of export notifications are estimated to be zero in the absence of exports.

Canadians

The Order would benefit Canadians by allowing Canada to remain in good standing with its international export commitments under the Rotterdam Convention. Canada’s participation in this international convention provides benefits to Canadians by ensuring that substances in international trade are used in an environmentally sound manner which reduces damage to the global and domestic environment and ecosystems.

7. Contacts

Bernard Madé
Director
Chemical Production Division
Environment Canada
200 Sacré-Cœur Boulevard, 3rd Floor
Gatineau, Quebec
K1A 0H3
Telephone: 819-994-4404
Fax: 819-994-5030
Email: Bernard.Made@ec.gc.ca

Yves Bourassa
Director
Regulatory Analysis and Valuation Division
Environment Canada
10 Wellington Street, 25th Floor
Gatineau, Quebec
K1A 0H3
Telephone: 819-953-7651
Fax: 819-953-3241
Email: Yves.Bourassa@ec.gc.ca

PROPOSED REGULATORY TEXT

Notice is hereby given, pursuant to subsection 332(1) (see footnote a) of the Canadian Environmental Protection Act, 1999 (see footnote b), that the Minister of the Environment and the Minister of Health, pursuant to section 100 of that Act, propose to make the annexed Order Amending Schedule 3 to the Canadian Environmental Protection Act, 1999.

Any person may, within 75 days after the date of publication of this notice, file with the Minister of the Environment comments with respect to the proposed Order or, within 60 days after the date of publication of this notice, file with that Minister a notice of objection requesting that a board of review be established under section 333 of that Act and stating the reasons for the objection. All comments and notices must cite the Canada Gazette, Part Ⅰ, and the date of publication of this notice, and be sent by mail to the Director, Chemical Production Division, Department of the Environment, Gatineau, Quebec K1A 0H3, by fax to 819-994-5030 or by email to SEC-ECS@ec.gc.ca.

A person who provides information to the Minister of the Environment may submit with the information a request for confidentiality under section 313 of that Act.

Ottawa, August 27, 2012

PETER KENT
Minister of the Environment

Ottawa, September 12, 2012

LEONA AGLUKKAQ
Minister of Health

ORDER AMENDING SCHEDULE 3 TO THE CANADIAN
ENVIRONMENTAL PROTECTION ACT, 1999

AMENDMENTS

1. Part 2 of Schedule 3 to the Canadian Environmental Protection Act, 1999 (see footnote 4) is amended by adding the following after item 33:

34. Endosulfan (CAS 115-29-7)

COMING INTO FORCE

2. This Order comes into force on the day on which it is registered.

[39-1-o]

Footnote 1
The full title of the Convention is the Rotterdam Convention on the Prior Informed Consent Procedure for Certain Hazardous Chemicals and Pesticides in International Trade.

Footnote 2
The full title of the Convention is the Stockholm Convention on Persistent Organic Pollutants.

Footnote 3
The Export Control List Notification Regulations and the Export of Substances Under the Rotterdam Convention Regulations.

Footnote 4
S.C. 1999, c. 33

Footnote a
S.C. 2004, c. 15, s. 31

Footnote b
S.C. 1999, c. 33