Export of Substances on the Export Control List Regulations guidance document: chapter 5

5. Rotterdam Convention

When a substance on the Export Control List is proposed for export to another country which is party to the Rotterdam Convention, an exporter may require a permit for export under the Export of Substances on the Export Control List Regulations. Sections 7 through 22 of the regulations apply to exports of substances listed on the Export Control List when they are exported to another party to the Rotterdam Convention. Considerations in these sections take into account the expected use by the importing party and the part of the Export Control List to which the substance is listed. When a permit application is required, the information submitted allows Canada to ensure that it is compliant with the Prior Informed Consent procedure under the Rotterdam Convention, or allows Canada to provide notice of export to the importing party which is also obligatory under the convention.

The overview of regulatory obligations in section 2 of this guidance document provides a summary of the effect of the provisions relative to the Rotterdam Convention in sections 7-22 of the regulations. For a detailed overview of the conditions relative to the Rotterdam Convention, please see flowchart 2.

5.1. Parties to the Rotterdam Convention

The following countries have ratified the Rotterdam Convention. For the purposes of the Export of Substances on the Export Control List Regulations, these countries are considered “Rotterdam parties”.

Last updated: January 30, 2017

Note: In case of a discrepancy between this document and the current registers and annexes made available through the Rotterdam Convention Secretariat, those registers and annexes shall prevail.

Afghanistan, Albania, Antigua and Barbuda, Argentina, Armenia, Australia, Austria, Bahrain, Belgium, Belize, Benin, Bolivia, Bosnia and Herzegovina, Botswana, Brazil, Bulgaria, Burkina Faso, Burundi, Cambodia, Cameroon, Canada, Cabo Verde, Chad, Chile, China, Colombia, Congo (Democratic Republic of), Congo (Republic of), Cook Islands, Costa Rica, Côte d’Ivoire, Croatia, Cuba, Cyprus, Czech Republic, Denmark, Djibouti, Dominica, Dominican Republic, Ecuador, El Salvador, Equatorial Guinea, Eritrea, Estonia, Ethiopia, European Union, Finland, France, Gabon, Gambia, Georgia, Germany, Ghana, Greece, Guatemala, Guinea, Guinea-Bissau, Guyana, Honduras, Hungary, India, Indonesia, Iran (Islamic Republic of), Ireland, Israel, Italy, Jamaica, Japan, Jordan, Kazakhstan, Kenya, Korea (Democratic People’s Republic of), Korea (Republic of), Kuwait, Kyrgyzstan, Lao People’s Democratic Republic, Latvia, Lebanon, Lesotho, Liberia, Libyan Arab Jamahiriya, Liechtenstein, Lithuania, Luxembourg, Macedonia (the Former Yugoslav Republic of), Madagascar, Malawi, Malaysia, Maldives, Mali, Marshall Islands, Mauritania, Mauritius, Mexico, Moldova (Republic of), Mongolia, Montenegro, Morocco, Mozambique, Namibia, Nepal, Netherlands, New Zealand, Malta (enters into force on April 17 2017), Nicaragua, Niger, Nigeria, Norway, Oman, Pakistan, Panama, Paraguay, Peru, Philippines, Poland, Portugal, Qatar, Romania, Russian Federation, Rwanda, Saint Kitts and Nevis, Saint Vincent and the Grenadines, Samoa, Sao Tome and Principe, Saudi Arabia, Senegal, Serbia, Sierra Leone, Singapore, Slovakia, Slovenia, Somalia, South Africa, Spain, Sri Lanka, Sudan, Suriname, Sweden, Swaziland, Switzerland, Syrian Arab Republic, Tanzania (United Republic of), Thailand, Togo, Tonga, Trinidad and Tobago, Tunisia, Uganda, Ukraine, United Arab Emirates, United Kingdom, Uruguay, Venezuela, Vietnam, Yemen, Zambia and Zimbabwe.

For a current list of countries that are Party to the Rotterdam Convention, please consult the list of participants on the website maintained by the convention secretariat. A country is party to the convention if they have been identified with a date of ratification, acceptance, approval, or accession and the convention is in force for that country (i.e. at least 90 days has passed since the date of ratification, acceptance, approval or accession).

5.2. Permit applications

The information to be provided in an application for an export permit is detailed in schedule 2 of the regulations. Templates are available for exporters to apply for an export permit. Exporters are not obligated to use these templates. However, to facilitate review Environment and Climate Change Canada encourages their use.

• Combined export notification and export permit application
  • For prior notification of export under section 5 when an exporter requires an export permit under sections 6 through 22 of the regulations.
• Export permit application
  • For use when an exporter requires a permit to export, but does not yet have information to supply for the prior notice of export. When an exporter anticipates an export in a given calendar year but has only estimates for the quantity and/or date, this allows the exporter to obtain the export permit in advance and provide notification of export at a later date. Exporters should note that the prior notice of export will have to be provided:
    • At least 7 days before the export (if the person holds a permit to export the substance issued under paragraph 185(1)(b) of the act (i.e. an export controlled under the Export and Import of Hazardous Waste or Hazardous Recyclable Material Regulations or under the Ozone-depleting Substances and Halocarbon Alternatives Regulations)
    • At least 15 days before the export (in any other case)
    in accordance with section 5 of the regulations.

Exporters should take note that whether or not an export permit is necessary, prior notice of export is still required for all exports of substances on the Export Control List.

Exporters who submit an application for an export permit, complete with all required information, should expect to receive their export permit, if approved, within ten working days from the date of submission of their completed application.

Despite an export being destined to another party to the Rotterdam Convention, the export would be exempted from sections 8 through 22 of the regulations if it met one or more of the conditions in subsection 7(2).

Substances listed in annex III of the Rotterdam Convention are listed for either their use as a pesticide or 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. The export of a substance listed in annex III and on part 2 of the Export Control List would be exempted from the need for an export permit if it is exported for a category of use other than the category for which it is listed in annex III. Such an export would nevertheless be subject to the insurance and labelling requirements of sections 20 through 22 of the regulations. The same would be true for an export necessary to comply with Ministerial direction under subparagraph 99(b)(iii) of the Canadian Environmental Protection Act, 1999 (CEPA).

Table 5 provides an inventory the Export Control List substances which are on annex III of the Rotterdam Convention and the associated category of use(s) for these substances.

5.2.1. Exports of substances on part 1 of the Export Control List

As per subsection 101(2) of CEPA, export of a substance on part 1 of the Export Control List can only occur if the export is for the purpose of destroying the substance or to comply with Ministerial direction under subparagraph 99(b)(iii).

An export permit will be required unless exempted by subsection 7(2), section 8 or section 9 of the regulations.

If the substance to be exported is not listed in annex III to the Rotterdam Convention:
The Minister will issue an export permit allowing the export to take place for the purpose of destroying the substance.

If the substance is listed in annex III to the Rotterdam Convention:
The Prior Informed Consent procedure will apply to the export and the Minister will provide a permit for export if the destination party has consented to imports of the substance. The permit may specify conditions on import required by the Importing party. For example, an exporter of a substance in part 1 of the Export Control List which is also listed in annex III of the Rotterdam Convention (such as polybrominated biphenyls) could receive an export permit if the export is for the purpose of destruction and the importing Party has consented to imports of the substance.

The Minister will not issue an export permit if the export does not comply with the Prior Informed Consent procedure of the Rotterdam Convention (for example, the importing party does not consent to imports of the substance). This compliance is assured under the regulations through the provisions of subsection 12(1).

5.2.2. Exports of substances on part 2 or part 3 of the Export Control List which are also listed in annex III of the Rotterdam Convention

With the exception of “mixtures that contain elemental mercury (CAS 7439-97-6) at a concentration of 95% or more by weight”, all substances listed on part 2 of the Export Control List are listed in annex III of the Rotterdam Convention. Substances listed on part 3 of the Export Control List may also be part of annex III of the Rotterdam Convention. An export permit will be required for these substances unless exempted by subsection 7(2), section 8 or section 9 of the regulations.

When an application is received for an export permit for a part 2 or part 3 substance that is also listed in annex III of the Rotterdam Convention, the Minister will confirm that the export complies with the Prior Informed Consent procedure of the Rotterdam Convention (for example, the importing party has stated “consent” for imports of the substance). The Minister will not issue an export permit if the export does not comply with the Prior Informed Consent procedure (for example, the importing party has stated “no consent”). This compliance is assured under the regulations through the provisions of subsection 12(1). The permit may specify conditions on import required by the importing party.

5.2.3. Exports of substances on part 3 of the Export Control List that are not listed in annex III of the Rotterdam Convention

Substances listed on part 3 of the Export Control List that are not listed in annex III of the Rotterdam Convention are subject to a domestic restriction on their use and, in order to remain compliant with article 12 of this Convention, the Government of Canada must provide prior notice of export to the importing party. An export permit will be required unless exempted by subsection 7(2), section 8 or section 9 of the regulations.

An application for an export permit for a substance listed on part 3 of the Export Control List that is not listed in annex III of the Rotterdam Convention provides the Minister with the necessary information to notify the importing party. Because the substance is not listed in annex III of the Rotterdam Convention, there will be no conditions on import to specify on the export permit. For example, an export of lead arsenate to Germany would require that the exporter hold a permit, and the permit application would provide information to share with Germany to notify of the proposed export.

5.2.4. Refusal, cancellation, amendment or suspension of a permit

Sections 16 through 18 describe the conditions under which the Minister must refuse, cancel, amend or suspend an export permit under the regulations. Generally, such an action is in response to a change in the Prior Informed Consent status of the importing party (for example, the importing party informs that it does not consent to future imports of the substance), or the exporter is not able to export the substance in compliance with the regulations, the Canadian Environmental Protection Act, 1999, or any other measures under this act.

5.2.5. Retention of records

An exporter must keep certain records for exports subject to sections 7 through 22 of the regulations. Section 19 identifies the records and requires a minimum retention time of 5 years. The records must be kept at the exporter’s principle place of business in Canada.

5.2.6. Insurance

Section 20 of the regulations requires an exporter to have liability insurance of not less than $5,000,000 for each export in respect of damages and costs for which the exporter could become liable.

5.2.7. Labelling

Exports that are subject to the Rotterdam Convention have labelling requirements imposed by that convention. A safety data sheet (SDS) must also accompany the export. Sections 21 and 22 of the regulations describe the labelling and SDS requirement.