Amendments to Canada's Export Control List Take Effect May 1, 2020

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[co-author: Stephanie Gagne - Student at Law]

On April 1, 2020, Global Affairs Canada published an Order Amending the Export Control List, SOR/2020-48. The Order updated the Export Control List, SOR/89-202 (ECL) to incorporate by reference an updated version of A Guide to Canada’s Export Control List. The Order adds, removes, or clarifies items listed on the ECL, and came into legal effect on May 1, 2020.

With these amendments, the ECL and Guide now reflect Canada's multilateral export control commitments as of December 2018. There is always some delay to member states' implementation of annual updates due to domestic policy review timelines, and it is typical for Canada's updates to be a year or so behind the international lists.

Canadian exporters of goods and technology subject to export controls, or of any goods or technology with potential military or strategic applications (i.e., dual-use items), should carefully review the relevant provisions of the December 2018 Guide to determine whether the updates impact the control status of their products. This includes firms that transfer software or technical data electronically to recipients outside Canada.

Background

The Guide contains Canada's detailed list of items subject to export restrictions under Canada's Export and Import Permits Act and their technical specifications. The 2018 Guide incorporates about 600 edits to the previous 2016 version. The updates reflect changes to the negotiated international control schedules of four multilateral arms control and non-proliferation regimes to which Canada is a party.

Canada is party to the Wassenaar Arrangement on Export Controls for Conventional Arms and Dual-Use Goods and Technologies, the Nuclear Suppliers Group, the Missile Technology Control Regime and the Australia Group (for non-proliferation of chemical and biological weapons). These bodies negotiate common lists of goods and technology for export control that are implemented by participating states, according to their respective national legislation and regulations. The international lists are updated annually, and Canada updates its domestic regulation and policies periodically to reflect the international updates. The new version of the Guide incorporates Canadian commitments and obligations to the various multilateral export control regimes up to December 31, 2018.

The bulk of the updates do not change the control status of goods or technologies, but clarify, through grammatical edits or technical notes, the scope of certain controls. The current updates modify the text of the control lists in Groups 1, 2, 3, 4, 6 and 7 of the ECL, as well as adding a new Group 9 that was added to the ECL as part of Canada's accession to the United Nations Arms Trade Treaty in September 2019. Group 5 contains Canada's unilateral controls, which were not amended in this edition. (Group 8, which formerly contained controls on certain illicit drugs and narcotics, was repealed in 2006 and is currently not in use.)

While the Order adds and removes some items from the Export Control List and provides technical clarification on others, it does not affect the Canadian export permit process. It is the responsibility of Canadian exporters to self-assess the control status of the goods and technology they transfer internationally, and to obtain any required export permits before doing so. Violations are punishable by criminal prosecution, and can entail significant financial, commercial and reputational risks for a company.

The New (December 2018) Guide

Group 1 – Dual Use List

The amendments made to Group 1 align with the Wassenaar Arrangement on Export Controls for Conventional Arms and Dual-Use Goods and Technologies, as amended by WA-LIST (18) 1 at the Plenary Meeting in Vienna, Austria held on December 5 and 6, 2018.

Group 1 now includes export controls on certain new items, including:

  • non-volatile memories (expanded definition) (item 1-3.A.1.a.2)
  • high power discrete microwave transistors (item 1-3.A.1.b.3.f)
  • electro-optic modulators (item 1-3.A.1.i)
  • mask substrate blanks (item 1-3.B.1.j)
  • software designed to restore microprocessors after electromagnetic pulse or electrostatic discharge (item 1-3.D.5)
  • read-out integrated circuits (item 1-6.A.2.f)
  • masks and reticles for specified optical sensors (item 1-6.B.2)
  • air-launch platforms, including aircrafts, for space launch vehicles (item 1-9.A.4.g)

The updates also remove export controls on certain categories of products, including:

  • robots capable of full three-dimensional image processing in real time (formerly item 1-2.B.7)
  • linear position feedback units (formerly item 1-2.B.8.a)
  • rotary position feedback units (formerly item 1-2.B.8.b)
  • technology for the development of interactive graphics and generators of machine tool instructions in numerical control units (formerly items 1-2.E.3.a and 1-2.E.3.d)
  • high-speed cinema recording cameras, mechanical high speed cameras and mechanical streak cameras (formerly items 1-6.A.3.a.1, 1-6.A.3.a.2 and 1-6.A.3.a.3)
  • technology for the development or production of gas turbine engine components using diffusion bonding technology (formerly item 1-9.E.3.a.7)

The updates clarify, without substantively changing, the scope of certain controls, including:

  • composite structures and laminates
  • materials designed for absorbing near-infrared radiation
  • metal alloys, metal alloy powder and alloyed materials
  • technology for metal working
  • fibrous or filamentary materials
  • plutonium and neptunium-237
  • optical mirrors
  • standards for ball bearings
  • numerically controlled machine tools
  • dimensional inspection or measuring systems
  • compound rotary tables
  • digital-to-analogue converters, field programmable logic devices, integrated circuits and related technology
  • high-energy devices
  • signal generators and analyzers
  • high-resistivity materials
  • computers and software for digital computers
  • electronically steerable array antennae
  • information security systems
  • hydrophones
  • lasers
  • unmanned submersible vehicles
  • underwater vision systems
  • marine gas turbine engines
  • telemetry and telecommand equipment for aeronautical equipment and spacecraft
  • software for testing aero-gas turbine engines

Of particular note are the changes to cryptographic controls. Among other things, the updates include a new decontrol note that applies to cryptographic information security items that are designed for a "connected civil industry application", meaning a network-connected consumer or civil industry application (other than "information security", digital communication, general purpose networking or computing), subject to further technical parameters described in the Guide. The updates also seek to address emerging technology, replacing the phrase "in excess of 56 bits of symmetric key length, or equivalent" with "described security algorithm", which now includes certain post-quantum cryptographic algorithms.

Group 2 – Munitions List

The Guide now applies export controls to:

  • two explosive materials, EDNA (Ethylenedinitramine) and TKX-50 (Dihydroxylammonium 5,5'-bistetrazole-1,1'-diolate) (items 2-8.a.42 and 2-8.a.43)
  • a binder material, TMETN (Trimethylolethane trinitrate) (item 2-8.e.21)
  • copper beta-resorcylate (item 2-8.f.5)
  • vessels for delivery of divers (item 2-9.a.1)
  • naval nuclear equipment (items 2-9.h)

Aero-engines manufactured before 1946 will no longer be subject to export controls (formerly item 2-10.d).

The Guide clarifies controls on:

  • firearm accessories (item 2-1.d),
  • military fire control, surveillance and warning equipment (item 2-5.b),
  • ground vehicles and components (section 2-6),
  • aircraft fuels and pyrotechnic materials (items 2-8.c.1 and 2-8.c.12),
  • diesel engines for submarines (item 2-9.b), and
  • intermodal containers for military use (item 2-17.l).

A technical note regarding cameras, imaging and countermeasure equipment was removed from section 2-15.

The amendments to Group 2 align with the Wassenaar Arrangement updates. There remain, however, certain Canadian divergences from the international schedules, such as, for example, slightly different exclusions and added control for Tasers (item 2-1.e.1) and other firearms designed to discharge projectile at a muzzle velocity exceeding 152.4 m/s or at a muzzle energy exceeding 5.7 Joules (item 2-1.e.2). NOTE: Section ML1 of the Wassenaar Arrangement's munitions list does not include Tasers and other firearms designed to discharge projectile at a muzzle velocity exceeding 152.4 m/s or at a muzzle energy exceeding 5.7 Joules.

Group 3 – Nuclear Non-Proliferation List

No items were added or removed to Group 3. The Guide clarifies the controls on the following:

  • nuclear grade graphite (item 3-2-2), and
  • irradiated fuel elements decladding equipment (item 3-2-3).

Although the Canadian amending regulation references the Guidelines for Nuclear Transfers (INFCIRC/254/Rev.13/Part 1a) issued by the Nuclear Suppliers Group, dated November 8, 2016, and adopted at the Plenary Meeting held on June 14 and 15, 2018, we note that the amendments in the Guide incorporate updates from the subsequent revision, INFCIRC/254/Rev.14/Part 1a dated October 18, 2019. (An archive of past circulars is available on the International Atomic Energy Agency website.)

Group 4 – Nuclear Related Dual-Use List

Export controls now apply to target assemblies and components for the production of tritium (item 4-2.A.4).

Water-hydrogen sulphide exchange tray columns will no longer be subject to export controls (formerly item 4-4.B.1).

The amendments clarify the controls on nuclear-related software and source code (Group 4 General Software Note).

Although the Canadian amending regulation references the Guidelines for Transfers of Nuclear-Related Dual-Use Equipment, Materials, Software, and Related Technology (INFCIRC/254/Rev.10/Part 2a) issued by the Nuclear Suppliers Group, dated November 8, 2016, and adopted at the Plenary Meeting held on June 14 and 15, 2018, we note that the amendments in the Guide incorporate updates from the subsequent revision, INFCIRC/254/Rev.11/Part.2a dated October 18, 2019.

Group 6 – Missile Technology Control Regime

The updates clarify the controls on:

  • turbojet, turbofan and other jet engines (items 6-3.A.1 and 6-3.A.2)
  • rocket motor cases, insulation components and nozzles (item 6-3.A.3)
  • flow-forming machines for test and production (item 6-3.B.3)
  • batch and continuous mixers (item 6-4.B.3)
  • propellant substances (item 6-4.C.3 – including the specific listing of hydroxylammonium nitrate)
  • flight control equipment for unmanned aerial vehicles (item 6-10.A)
  • satellite navigation systems (item 6-11.A.3)
  • gravity meters or gradiometers (item 6-12.A.3)

The amendments made to Group 6 align with the 2018 updates to the Guidelines for Sensitive Missile-Relevant Transfers, issued by the Missile Technology Control Regime to control the export of missile equipment and technology referred to in the MTCR/TEM/2018/Annex of November 30, 2018,that was adopted at the Reinforced Point of Contact Meeting held on December 18 and 19, 2018. (The most recent version of the Missile Technology Control Regime Annex can be found on the Missile Technology Control Regime website.)

Group 7 – Chemical and Biological Weapons Non-Proliferation List

New export controls apply to:

  • prefabricated repair assemblies and components for reaction vessels and storage tanks (items 7-2.1.k and 7-2.1.l)
  • N,N-Diisopropylaminoethanethiol hydrochloride as a CWC Schedule 2B precursor (item 7-3.4.l)
  • nucleic acid assemblers and synthesizers (item 7-12.10)

Items 7-13.1.f and 7-13.3, relating to genetically modified human, animal and plant pathogens, were clarified through revised technical notes.

The amendments to Group 7 mostly align with the Guidelines for Transfers of Sensitive Chemical or Biological Items, issued by the Australia Group to control the export of chemical and biological weapons, the list of which was amended at the Plenary Meeting held from June 4 to 8, 2018. Certain variations in the Canadian text as compared to the international schedules remain. For example, unlike the Guidelines issued by the Australia Group, the Guide controls shiga toxin producing Escherichia coli (STEC) of serogroups O26, O45, O103,O104, O111, O121, O145, O157, and other shiga toxin producing serogroups (see Guide section 7-13.1.f).

Group 9 – Arms Trade Treaty

Group 9 reflects Canada's commitments under the United Nations Arms Trade Treaty (ATT), which we discussed in more detail in our previous blog post on this subject (Canada Implements New Export Brokering Controls to Join the UN Arms Trade Treaty). These items include a subset of the following categories of goods:

  • battle tanks;
  • armoured combat vehicles;
  • large-calibre artillery systems;
  • combat aircraft;
  • attack helicopters;
  • armed vessels and submarines;
  • missiles and missile launchers; and
  • small arms and light weapons (except for antique firearms, as defined in the Criminal Code).

Goods may be listed in Group 9 and elsewhere on the ECL. In an April 9 press release providing an update on the government's review of the Saudi Arabia armoured vehicles deal, Global Affairs announced that Canada will be creating an arms-length advisory panel of experts to review best practices regarding authorization of arms exports by state parties to the ATT. It also noted that Canada will be participating in "multilateral discussions on means to strengthen international compliance with the ATT, toward the establishment of an international inspection regime".

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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