FEDERATION TO THE WORLD TRADE ORGANIZATION 11 страница

286. He further stated that Article 70 of the CU Customs Code set-out a list of customs payments (import duty, export duty, value added and excise taxes, customs fees and, as necessary, safeguard, anti-dumping and countervailing duties on imported goods). Article 186 of the CU Customs Code specified those persons who could be responsible for declaration of goods and payment of customs payments, and the legal grounds for exemption of persons or products from such payments was found in Article 80 and 81 (for further information on tariff exemptions, see the Section "Tariff Exemptions"; and on customs fees, see the Section "Fees and Charges for Services Rendered" of this Report). The CU Customs Code also authorised deferment of payments and making payments in instalments. Articles 132 to 136 of Federal Law No. 311-FZ of 27 November 2010 "On Customs Regulation" stipulated the grounds for deferment of payments and provided a list of circumstances in which they were permitted. Articles 89 to 90 of the CU Customs Code set-out the mechanism for remission of overpaid or over-recovered customs payments from the customs authorities, supplemented by Articles 147 to 149 of Federal Law No. 311-FZ. The customs authority was required to inform the payer of the overpaid or over-recovered customs payments within one month of the detection of the overpayment or over-recovery. Articles 91 to 93 of the CU Customs Code provided for the recovery of unpaid customs payments to the customs authorities, and Articles 150 to 160 of Federal Law No. 311-FZ detailed the procedures to be used. Chapter 28 of the CU Customs Code also specified the procedures and time-frames for releasing goods (Articles 195 to 201). Pursuant to Article 196 of the CU Customs Code, the customs authority had to take a decision on release of the goods not later than one working day from the date of registration of the customs declaration, unless specifically provided for elsewhere in the CU Customs Code, e.g., as provided for in Article 331, concerning intellectual property protection. According to Article 186.2 of the CU Customs Code, in case of a preliminary customs declaration, a decision on the release of the goods was required to take one working day from the date of presentation of the goods to the customs authority registering the declaration.

287. The representative of the Russian Federation also noted that if, when examining a customs declaration and any other documents or data, customs authorities discovered any signs suggesting that the information stated by the declarant might contain fictitious details influencing the amount of dutiable payments or that the declared information had not been properly evidenced, customs authorities could conduct an additional examination to accurately determine the necessary payments. If the examination could not be conducted within the time limits provided for the release of goods from customs control, the goods could be released upon presentation of a guarantee for the duty payments in the amount of the customs payments that might be additionally charged as a result of additional examination (Article 69 of the CU Customs Code).

288. The declarant, when securing a customs payment, had the right to use any kind of security envisaged by the CU Customs Code (Article 86), provided that the customs authority recognised, depending on the circumstances of each particular case, the reliability of the security used. In such case, the declarant was advised in writing of the amount required. Article 196 further provided that the goods must be released no later than one day following the date of registration of the customs declaration. Article 220 of Federal Law No. 311-FZ stated that this term could be prolonged until a security for customs payment was provided. Article 85 of the CU Customs Code provided for cases in which the security for customs payment was required and Article 86 specified the methods of providing a security for customs payment. The declarant could choose which method to use. These methods included: (i) a personal guarantee, including a surety bond; (ii) a payment in cash at the desk of the cashier or transfer of funds to the account of the customs office at the Federal Treasury (cash deposit); (iii) a bank guarantee; or (iv) a mortgage of goods and other property. Each method was described in detail in Articles 140 to 146 of Federal Law No. 311-FZ (further information on the implementation of Article 13 of the Agreement on the Implementation of Article VII of the GATT 1994 was provided in the Section "Customs Regulations and Procedures" of this Report).

289. Some Members expressed concern that the one-day time period for examining and clearing goods allowed under Article 196 was subject to exceptions provided by the CU Customs Code and Federal Law No. 311-FZ, stating that this could unnecessarily hold up goods in clearance. In response, the representative of the Russian Federation explained that even before the maximum time period had been reduced from three business days (under Federal Law No. 61 of 28 May 2003 "Customs Code of the Russian Federation") to only one day, as provided for by the CU Customs Code, over 90 per cent of goods were cleared within one day or less.

290. Some Members expressed concerns regarding possible inconsistencies in the application of customs laws and regulations by regional customs authorities and stressed the need to ensure uniform and transparent implementation of customs regulations throughout the entire territory of the Russian Federation. Many Members also sought a clarification of Customs Order No. 25 of 15 January 2001 "On the Checkpoints for Entry into the Territory of the Russian Federation of Certain Categories of Goods" and other related orders of the SCC, which limited the number of customs land checkpoints for goods imported from 14 countries, including a number of ASEAN countries. Noting that a number of these 14 countries were WTO Members, these Members requested: (i) confirmation from the Russian Federation that this particular order and other related orders had been repealed; and (ii) a commitment that they would not be re-introduced in the future.

291. In response, the representative of the Russian Federation said that the uniform application of customs procedures was required by Article 7 of Federal Law No. 311-FZ, which provided for the uniform application of customs legislation by all customs bodies in the territory of the Russian Federation. Concerning the authority to limit the numbers of customs checkpoints for goods, pursuant to Article 190 of the CU Customs Code, Articles 10.4 and 205 of Federal Law No. 311-FZ, the customs authorities could designate customs checkpoints for declaration of imports and exports, respectively. He added that Customs Order No. 25 of 15 January 2001 had been abolished by Customs Order No. 517 of 24 May 2002 "On the Invalidation of Certain Legal Acts of the State Customs Committee of Russia". Further information on the designation of certain customs checkpoints for importation and exportation of goods was provided in the Section "Other Customs Formalities" of this Report and in Table 13 and Table 14.

292. He also noted that the Government had the right to carry out the analysis of acts and decisions of customs bodies and abolish them in case they were inconsistent with the requirements of the international treaties of the Russian Federation, including WTO obligations, CU Agreements, other CU legal acts, national legislation and other normative acts of the Russian Federation. He also added that any normative legal act regarding customs affairs could be declared void through a judicial procedure (he referred to the Sub-Section "Right of Appeal" of the Section "Framework for Making and Enforcing Policies" of this Report). The representative of the Russian Federation also explained that, pursuant to Article 104 of the CU Customs Code, Article 25 of Federal Law No. 311-FZ provided that the State would reimburse the losses incurred by persons as a result of damage caused by illegal resolutions, actions (omissions) of officials and other employees of customs authorities within the framework of fulfilment of office or labour duties by them, e.g., the untimely adoption, entry into force, and/or publication of a legal act whose adoption was stipulated by the normative legal acts of the Russian Federation or as a result of inaccurate information circulated by Customs authorities under the procedure set-out by the Federal legislation.

293. Members asked the Russian Federation to provide information on how the FCS and its regional offices published and/or made their rulings and other information available to importers and exporters. They noted that the FCS had sometimes issued administrative orders or taken decisions which were directly relevant for traders without making their contents known to traders or without publishing them. They asked the Russian Federation to explain how the customs reform would ensure that all legal acts were published and how all other decisions and information relevant to traders would be made publicly available. Members also sought a confirmation that relevant Customs Decisions, e.g. Orders and Letters, and decisions of local customs authorities that traders and other interested parties needed to be able to review and understand, would be made available promptly and at reasonable cost.

294. In response, the representative of the Russian Federation stated that, pursuant to Article 10 of the CU Customs Code, CU Agreements and other CU legal acts relating to customs issues would be available free of charge and published in its official and other printed publications, as well as through television, radio, information technology, and through other means. Furthermore, all FCS legal acts were to be made public, according to Article 51 of Federal Law No. 311-FZ. The CU Commission, as well as the customs authorities of the CU Parties, were required to ensure free access to information on their official websites on CU legal acts related to customs issues. The customs authorities were also obliged to consult with interested persons on customs matters, and, upon written request of such interested persons, to provide information in written form as soon as possible, but not later than the date fixed in the legislation of the CU Parties. For the Russian Federation, Article 8 of Federal Law No. 311-FZ provided that normative legal acts pertaining to customs had to be formulated in such a way, that a clear understanding by every person of his/her rights and obligations would be ensured. Furthermore, Article 51 also required customs authorities to provide access to draft legal acts, as well as to amendments and supplements to normative legal acts, in the area of customs, to the extent that it did not impede effectiveness of customs control. In addition, Article 15 of Federal Law No. 164-FZ of 8 December 2003 "On the Fundamental Principles of State Regulation of Foreign Trade Activity" provided the possibility of holding consultations and other procedures, aimed at ensuring transparency when carrying out the normative legal regulation of foreign trade activity. In particular, the above-mentioned procedures were to be carried out when preparing a draft normative legal act dealing with the right to conduct foreign trade activity. In a limited number of cases, authorities could avoid consultations, if such consultations would entail a delay in the adoption of a normative legal act of the Russian Federation affecting the right to conduct foreign trade activity which might inflict substantial damage to the interests of the Russian Federation.

295. The representative of the Russian Federation explained that normative legal acts of the FCS (e.g., acts with a binding effect throughout the territory of the Russian Federation) regulated customs procedures and customs requirements, customs rules, and the formats of customs documents. In response to concerns from Members with respect to unpublished documents, such as determinations of the FCS and its regional offices or "secret orders", the representative of the Russian Federation stated that the only time this occurred was in the case of certain legal acts destined for internal use of customs authorities. These acts could only pertain to customs officers' activities in relation to goods imported to or exported from the territory of the Russian Federation illegally, or to internal security of the FCS. In accordance with Article 8.4 of Federal Law No. 311-FZ, such acts could not contradict rules set by laws, presidential or governmental acts, or orders of Federal Executive bodies, nor provide any additional obligations for participants in foreign trade activities. These acts were also meant to ensure the proper implementation of customs legislation. Issued in the form of orders, briefings, letters, telegrams, teletype letters, these acts were not considered as normative legal acts, but as acts, which could only have a recommendatory character and be used internally for the sole purpose of a State body. In particular, "customs letters" containing recommended import valuations were sent to customs posts, to assist officials in assessing the value of certain imports. Such recommendations were not mandatory, were not published and were not intended to be used as substitutes for the transaction value. The representative of the Russian Federation also noted that, pursuant to Government Decision No. 1009 of 13 August 1997 "On the Approval of the Rules for Preparing the Normative Legal Acts of the Federal Bodies of the Executive Power and their State Registration" (as last amended on 15 May 2010), a Federal Executive authority was prohibited from issuing normative legal acts in the form of letters. Further information on the operation of the risk management system and on the nature and scope of risk profiles were given in the Section "Customs Valuation" of this Report.

296. In response to further questions from Members of the Working Party concerning "secret orders", the representative of the Russian Federation added that the procedure for publication and making effective regulatory legal acts of Federal Executive Authorities was governed, in particular, by Presidential Decree No. 763 of 23 May 1996 "On the Procedure for the Publication and the Entry into Force of the Acts of the President of the Russian Federation, the Government of the Russian Federation and the Normative Legal Acts of the Federal Executive Bodies"; Government Decision No. 1009 of 13 August 1997 "On the Approval of the Rules for Preparing the Normative Legal Acts of the Federal Bodies of the Executive Power and their State Registration"; and Order No. 88 of 4 May 2007 "On the Approval of Explanations on the Application of Rules for Preparing the Normative Legal Acts of Federal Executive Power Bodies and on their State Registration" of the Ministry of Justice of the Russian Federation.

297. In regard to normative legal acts of the FCS, such acts were subject to mandatory publication pursuant to Article 15.3 of the Constitution of the Russian Federation with the exception of acts or parts thereof constituting State secrets. An exhaustive list of such information had been approved by the Law of the Russian Federation No. 5485-1 of 21 July 1993 "On State Secrets". The official organs for publication were Rossiiskaya Gazeta and the Bulletin of Regulatory Acts of Federal Bodies published by Yuridicheskaya Literatura publishing house of the Administration of the President, issued monthly since 1998. Normative legal acts of the FCS subject to State Registration with the Ministry of Justice became enforceable only after they had been registered and officially published.

298. The FCS, in addition to official government publication, was required to publish all of its normative legal acts in its own official publications, the Customs Bulletin and Customs Gazette, as provided in Article 51 of Federal Law No. 311-FZ. He added that the FCS had its own internet website where the necessary information related to its activity, adopted normative legal acts and comments formulated on these texts were available (www.customs.ru). The FCS also published the explanatory documents. Legal information reference systems were also easily accessible on the internet. Further information on legal requirements for the publication of legal acts was given in paragraphs 1408 to 1428 of the Section on "Transparency" of this Report.

299. The representative of the Russian Federation further stated that, as provided for in Article 52 of Federal Law No. 311-FZ, customs authorities were responsible for providing advisory services to all interested persons with regard to customs issues such as classification and valuation and other issues within their competence. Such services were to be delivered as quickly as possible, and no later than one month from the date of receipt of the enquiry.

300. A Member invited the Russian Federation to make available an English-language version of its customs website (www.customs.ru) as a means of facilitating access to information on the customs system of the Russian Federation to Members. In response, the representative of the Russian Federation informed Members that documents in English could be found on http://eng.customs.ru/.

301. In response to a question from a Member concerning the possibility for a foreign entity to import goods into the Russian Federation, the representative of the Russian Federation noted that Chapter 27 of the CU Customs Code (in particular, Articles 186 to 194) specified the rights and obligations of persons, including foreign persons not registered as a Russian juridical entity or individual entrepreneur, to import goods, into the Russian Federation and perform all necessary customs procedures, including payment of customs duties and charges. Additional provisions were contained in Article 210 of Federal Law No. 311-FZ. Further discussions on this issue could be found in the Section "Registration requirements for import/export operations" of this Report. He also stated that a foreign person, importing goods into the Russian Federation, could also place the goods under the regime of a bonded warehouse. In that case, customs duties were to be paid at the moment of releasing the goods to free circulation in the territory of the Russian Federation by the person who would pick up the goods and take the legal responsibility for them.

302. The representative of the Russian Federation confirmed that no law, regulation, or administrative rulings of general application, including customs measures, giving effect to the Agreement on Implementation of Article VII of the GATT 1994 (Customs Valuation Agreement), would be enforced before it was published. The Working Party took note of these commitments.

Ordinary Customs Duties

303. The representative of the Russian Federation explained that from 1 January 2010, the legal basis for the customs tariff of the Russian Federation was the Agreement on Common Customs and Tariff Regulation of 25 January 2008 between the Governments of the Republic of Belarus, the Republic of Kazakhstan and the Russian Federation (hereafter: Agreement on Customs Regulation), as elaborated in the Common External Tariff of the CU (CET), and approved in Decision No. 18 of 27 November 2009 "On the Common Customs Tariff Regulation of the Customs Union of the Republic of Belarus, Republic of Kazakhstan and the Russian Federation" of the Interstate Council of the EurAsEC (hereafter: Decision No. 18). Pursuant to CU Commission Decision No. 130 of 27 November 2009 "On Common Customs and Tariff Regulation of the Customs Union between the Republic of Belarus, Republic of Kazakhstan and the Russian Federation" (hereafter: Decision No. 130), tariff rates were set by the CU Commission. Furthermore, the rules for common CU tariff preferences to developing and least-developed countries were elaborated in the Protocol on the Provision of Tariff Preferences of 12 December 2008 (hereafter: Protocol on Tariff Preferences).

304. According to the Agreement on Customs Regulation, the CU Commission could issue decisions determining CET tariff rates. These CU Commission decisions were based on the results of negotiations among the CU Parties. As from 1 January 2010, the CU Parties had no authority to change import customs duty rates unilaterally. The representative of the Russian Federation further explained that all exemptions from the CET for each CU Party were provided for in the unified list of tariff exemptions as described in Sections "Tariff Exemptions" and "Trade-related Investment Measures (TRIMs)" of this Report.

305. The representative of the Russian Federation explained that tariff decisions would normally be taken by the CU Commission by a two thirds qualified majority of votes, except for sensitive products (the 5,012 specified tariff lines included in Table 15) on which consensus was required. Consensus might also be required in other cases specified in the agreements comprising the legal basis of the CU. He added that within the Russian Federation, the Government Commission for Economic Development and Integration was responsible for establishing the position of the Russian Federation on customs and tariff policies, including the development of proposals to the other CU Parties to set or change import duty rates for consideration at the meetings of the CU Commission as provided for in Article 4 of the Agreement on Customs Regulation.

306. The representative of the Russian Federation further explained that the Federal Customs Service of the Russian Federation was not authorised to change import tariff levels, or introduce a specific method of calculation thereof, by other means (such as recommendations, letters, "instructive letters", telegrams, or teletype messages) than as set-out in the CU Customs Code, the CU Agreement on Customs Valuation, the CU Agreement on Common Rules of Origin of Goods, relevant CU Commission decisions, and international agreements to which the Russian Federation was a party and the normative legal acts of the Russian Federation concerning customs and tariff matters.

307. The representative of the Russian Federation informed Members that the CET was based on the 2007 Harmonized Commodity Description and Coding System (HS) of the World Customs Organization (WCO). This System had originally been introduced in the Russian Federation on 1 January 2007 by Government Resolution No. 718 to replace the HS 2002 System previously used. In 2007 - 2009, the commodity nomenclature of the Russian Federation had been further modified beyond the HS 2007 6-digit level. The present CET Code nomenclature differed from the system of the Russian Federation introduced on 1 January 2007.

308. Some Members requested that the consolidated results of the tariff negotiations with Members be converted from HS 1996 to the tariff nomenclature applicable in the Russian Federation at the time of its accession to the WTO. They also requested that concordance tables for each change of the tariff nomenclature from HS 1996 to the latest nomenclature being applied by the Russian Federation (i.e., HS 1996 to HS 2002 to HS 2007 to the CET Code nomenclature) be provided to Members for information and to permit verification of the accuracy of the conversion of the results of bilateral tariff negotiations into the final consolidated Schedule of Concessions and Commitments on Goods of the Russian Federation.

309. In response, the representative of the Russian Federation said that the Russian Federation would ensure that Members were provided with the information necessary to verify commitments in the nomenclature it applied on the date of accession.

310. The representative of the Russian Federation noted that currently the CET consisted of 11,170 tariff lines. A significant majority of tariff lines (9,208) were subject to ad valorem duties and 216 tariff lines were subject to specific duties. The ad valorem rates and ad valorem equivalents of combined and specific rates ranged from 0 to 30 per cent, except for:

- live swine (ex HS 0103);

- beef, pork and poultry imported in excess of certain amounts (out-of-quota meat) (ex HS 0201, 0202, 0203 and 0207);

- caviar (HS 1604 30 100);

- sugar (HS 1701 11, 1701 12, 1701 91, 1701 99);

- beer and ethyl alcohol (HS 2203, 2207, 2208 90 910 0, 2208 90 990 0);

- used truck tractors older than five years (HS 8701 20 901 3);

- used buses older than five years (ex HS 8702 10 192 1, 8702 10 199 1, 8702 90 192 1, 8702 90 199 1);

- used passenger motor cars (ex HS 8703);

- used trucks older than five years (ex HS 8704); and

- furniture with a cost lower than 1.8 EUR per 1 kg (HS 9403 50 000 1, 9403 60 100 1, 9403 60 900 1).

Examples of tariff items that were subject to specific rates were apples, chocolate, beer, and strong alcoholic beverages.

311. The representative of the Russian Federation explained that the remaining 1,746 tariff items in the CET were subject to combined duties. He explained that combined (mixed) duties were expressed in terms of alternative rates, one as an ad valorem rate and the other as a specific rate that served as a minimum rate of duty, e.g., 5 per cent, but no less than 1 EUR per kilogram. Either the ad valorem duty rate or the specific duty rate was applied depending exclusively on the customs value of the good. Combined tariff rates were applied to: live swine, meat, certain species of fish, fermented or acidified milk and cream, whey, butter and cheeses, bird's eggs, flowers, tomatoes, cucumbers, bananas, citrus fruits, coffee and tea, rice, malt and starches, preserved vegetables, plant oils, sausages and other preparations of meat, juices, tea and coffee extracts, yeasts, food preparations not elsewhere specified (ex HS 2106), waters and ethyl alcohol, preparations used in animal feeding, cigars and cigarettes, sodium sulphides, resorcinol and its salts, maleic anhydride, bleaches and soap, dextrin and modified starches, plastics and articles thereof, tyres of rubber, leather and fur articles, articles of paper and paperboard, nonwovens, carpets and textile floor coverings, coated fabrics, textiles, footwear, headgear, artificial flowers, ceramic products, imitation jewellery, aluminium and articles thereof, tin and articles thereof, apparels, home electronics, cars, watches and furniture.

312. In response to comments of some Members that, combined (mixed) and specific rates should be replaced by ad valorem duties upon the accession of the Russian Federation, in order to increase transparency and reduce distortions in trade, the representative of the Russian Federation noted that the CET ensured a similar effective rate for the ad valorem and specific alternatives of combined rates. He also informed Members that the combined (mixed) rates were subject to bilateral tariff negotiations and their results would be reflected in the Schedule of Concessions and Commitments for Goods of the Russian Federation.

313. As a result of these negotiations, the representative of the Russian Federation confirmed that for goods subject to a combined duty (for example, in the form of 5 per cent, but not less than 2 EUR/kg), it would be ensured, whether by the Russian Federation or the competent bodies of the CU, that the ad valorem equivalent of the specific duty rate for each tariff line, calculated based on the average customs value, would be no higher than the alternative ad valorem duty rate for that tariff line in the Schedule of the Russian Federation in accordance with the following provisions:

- On an annual basis, it would be determined, whether by the Russian Federation or by the competent bodies of the CU, whether it was necessary to reduce the applied specific duty rate to ensure that it was no higher than the applied ad valorem duty rate;

- This calculation would be done two months before the end of each calendar year, beginning in the first calendar year after the date of the accession of the Russian Federation;

- Data for the calculations would be from a three-year period, determined by taking trade data from a recent five-year representative period and excluding data for years with the highest and lowest trade for that period;

- Data on trade with countries or territories with which the Russian Federation had a Customs Union or free trade agreement would be excluded from the calculation; and

- Data would be drawn from the Official Customs Statistics of the Russian Federation notified to the WTO Integrated Database (IDB) unless such data was unavailable. In such case, IDB and COMTRADE data would be used.

The Russian Federation would inform Members of the results of these calculations on a tariff line basis and, if the results showed that it was necessary to reduce the specific duty rate alternative, this reduction would be made and would go into effect automatically, beginning on 1 January of the year following the calculation. In no case would the applied duty (whether expressed in ad valorem or specific terms and whether determined by the Russian Federation or the competent bodies of the CU) exceed the bound rate of the combined duty. If, after reductions based on the annual re-calculation and changed circumstances, the specific duty rate alternative became significantly lower than ad valorem alternative rate of duty, the Russian Federation reserved the right to modify permanently the form of the duty to a purely ad valorem duty, at a level that complied with the binding for the relevant tariff line. The Working Party took note of these commitments.