Canada: New Canadian Export Control Handbook Should Be Carefully Reviewed

Foreign Affairs and International Trade Canada (FAITC) has just amended its Guide to Canada's Export Controls (June 2006) by removing the Introduction section which contained administrative information on the export permit process. There has been no change to items covered under the Export Control List, so the Guide remains dated June 2006.

Apparently as a replacement for the old Guide's Introduction, FAITC has separately published the Export Controls Handbook (dated February 2009). It's worth a few minutes of your time to carefully review it.

More Guidance

The Introduction in the old Guide was 33 pages in length, while the Export Controls Handbook is 55 pages. The Handbook includes similar administrative information but it is updated, more detailed, and also contains discussion of other Canadian trade embargo programs.

In particular, you may find the Table 1: Summary of Export Prohibitions (pp. 14-15) to be of some assistance. Another example of additional detail can be found in "Box 4: Exports by Intangible Means", which discusses the various non-physical means by which controlled exports of services and technology can occur including through training, emails, telephone conversations and face-to-face meetings.

Voluntary Disclosure Procedures

One of the most significant additions to the Export Controls Handbook is its written procedures on voluntary disclosures. Although informal disclosures could be made to FAITC in the past, release of this written procedure is a significant and welcome development. In this regard, section H.7 of the Handbook provides that:

The Export Controls Division recognizes that, on occasion, responsible exporters inadvertently fail to comply with the Export and Import Permits Act. We encourage all exporters in such a situation to disclose such episodes to us as soon as possible.
The Export Controls Division looks favorably upon disclosures if, after considering the information provided, we are satisfied that the exporter has fully cooperated and that no further action is warranted.
Depending on the circumstances of a case, we may refer it to the Canada Border Services Agency for further review.
H.7.1. Disclosure Procedures
Any voluntary disclosure must be accompanied by a cover letter, signed by a senior company officer and addressed to the Director, Export Controls Division, Foreign Affairs and International Trade Canada, 125 Sussex Drive, Ottawa, Ontario K1A 0G2, which clearly states that its purpose is to disclose noncompliance with the Export and Import Permits Act. Included in the cover letter or in accompanying documentation must be the following:
  • Details of the products concerned (including technical specifications for assessment of export control status)
  • Dates of all shipments, mode of transport, and port of exit
  • Quantities and values of each shipment for each product concerned (including copies of the B13 or Canadian Automated Export Declaration submitted to the Canada Border Services Agency, as well as copies of bills of lading or commercial invoices)
  • Contract of sale between the exporter and the final consignee
  • For each export shipment in question, a statement as to whether the export took place intentionally
  • Description of the circumstances underlying each export shipment in question
  • Description of steps taken or processes and procedures put in place to ensure that where required, export permits will be obtained in future, and
  • Any other documentation that the exporter believes is relevant to the purpose of the disclosure.

Disclosures may be submitted in writing or electronically. You should contact the Export Controls Division for advice on the most appropriate means of submitting a disclosure of non-compliance.

Ensuring Compliance with Canadian Export Controls

Although it does not introduce any changes to Canadian export controls laws, the Handbook ought to be carefully reviewed by all Canadian exporters of goods, services and technology to better understand current Canadian export permit procedures and ensure their compliance systems are fully updated and complete.

Further, it is important to note that any effective export control compliance program for businesses operating across the United States-Canada border will need to take into account the consistencies and conflicts between U.S. and Canadian control regimes. In some cases, the controls will be similar or even identical, in other cases they will differ, while in yet others they actually create conflicting obligations such that compliance with one regime results in violation under another.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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