FEDERATION TO THE WORLD TRADE ORGANIZATION 17 страница

475. In response to the request of the same Member to clarify what "formalities" not related to encryption could be applied to goods with encryption technology, the representative of the Russian Federation noted, that such formalities could relate to the requirements resulting from application of the legislation on customs regulation, technical regulation, intellectual property rights, and other legal acts, which were usually applied with respect to the imported goods or goods designed for internal circulation in the market. He added that all goods with encryption technology (not specially designed or modified for military use) de-controlled by the Wassenaar Arrangement by means of Category 5, Part 2, would be allowed to be imported "without any formalities related to encryption".

476. The representative of the Russian Federation confirmed that the conditions for importation of goods containing encryption technology, subject to current and any future exemptions, indicated in all of the Notes to Category 5, Part 2 "Information Security" of the Wassenaar Arrangement Dual Use List, whether imposed by the Russian Federation or the competent bodies of the Customs Union, would not be more restrictive than those in effect as of 18 November 2006. In response to a question from a Member, the representative of the Russian Federation added that mobile phones currently legally sold at the retail level in the Russian Federation were included among such goods. The Working Party took note of these commitments.

477. With respect to goods falling into the categories set-out in Table 29, the representative of the Russian Federation confirmed that, within the framework of the interim system, any restrictions existing before 1 January 2010 would be eliminated and no new restrictions, such as experts evaluations, approvals, and licenses, for the importation of those goods would be adopted or applied, whether by the Russian Federation or the competent bodies of the CU. He further informed Members that within the framework of the interim system, importation of goods in the categories set-out in Table 29 would be permitted based on a one-time submission of a notification. To comply with this requirement, the manufacturer of the good would submit a completed paper copy of a form containing information specified in Table 30. Further, the representative of the Russian Federation confirmed that no licenses would be required, whether by the Russian Federation or by the competent bodies of the CU, for imports into the Russian Federation of goods with encryption technologies, included in Table 29, and the exemptions set-out in paragraph 476. The Working Party took note of these commitments.

478. Addressing a request from a Member, he confirmed that all goods with encryption technology released by future Wassenaar Arrangement Category 5, Part 2 "Information Security" de-controls would be allowed to be imported "without any formalities related to encryption". Goods subject to a notification requirement, in accordance with paragraph 477 were listed in Table 29. In accordance to a question from a Member, the representative of the Russian Federation explained that, consistent with Wassenaar practice, the regulating country (the Russian Federation) would determine which goods qualified as "mass market goods", as defined in Table 29. He added that the data to be submitted for a "one-time notification" application were listed in Table 30. He confirmed that, if a good had been imported subject to the "one-time notification" process, that good would not be subject to any other notifications by any parties importing that good. The information on goods approved for import through the "one-time notification" process would be available to the public on the websites of the Federal Security Service.

479. In response to a question from a Member, the representative of the Russian Federation explained that, if proprietary information was submitted in the notification, and the manufacturer identified that information as proprietary, that information would be protected. Confirmation of notification would be automatic, unless the manufacturer or its authorised representative in the Russian Federation were contacted within ten working days after submission of the notification regarding its compliance with the requirements, including whether the product was correctly subject to notification, as set-out in paragraph 477. In the Russian Federation, the Federal Security Service would maintain a public internet site where such confirmations would be posted. Any importer or shipper could rely on a relevant confirmation. Once a good was notified and confirmed, an importer/shipper would only be required to indicate that the good appears on the internet site in the relevant customs declaration. He further explained that this notification procedure was intended to facilitate the entry of the goods listed above and would not result in any delays or additional approval procedures.

480. The representative of the Russian Federation confirmed that goods that had been subject to examination under import procedures related to encryption, prior to the establishment of this interim system, and, which were covered by the categories set-out in Table 29, would be automatically posted on the internet site without making the notification set-out in paragraph 477. The Working Party took note of these commitments.

481. For goods containing encryption technology that need an import licence, the representative of the Russian Federation confirmed that, within the framework of an interim system, such goods would need to undergo expert evaluation and approval only once. If an expert evaluator needed additional information for its evaluation, it would be required to notify the manufacturer or his authorised representative in the Russian Federation and request such information within ten working days of the application. Manufacturers would not be obligated to submit source code and failure to submit such code alone, would not result in denial of an application. After the good was approved, the same good, or a good used for the same purpose with identical encryption, could be imported into the Russian Federation with a licence issued in a manner consistent with Article 2 of the WTO Agreement on Import Licensing Procedures. The time period for completing import licensing procedures, including the time required to obtain an experts' evaluation, to receive approval and the import licence, would not exceed three months. Fees for experts' evaluations and licensing would be transparent and based on the costs of services rendered. The Working Party took note of these commitments.

482. In response to a question from a Member, in respect of the expert evaluation process, i.e., requirements regarding information related to encryption algorithm, the representative of the Russian Federation noted that the information regarding respective requirements was described in paragraph 481.

483. The representative of the Russian Federation confirmed that the Russian Federation would engage interested Members in a review of the operation of this interim system. The purpose of this review would be to clarify and refine procedures for notification, confirmation, and licensing of goods with encryption technology and, where possible, to further improve and expand the products covered under paragraph 476 and Table 29. The Working Party took note of these commitments.

484. In response to a question from a Member about the timing of the review, the representative of the Russian Federation informed that, at the current stage, it was not possible to define the timing of the conversion from the interim system to the permanent one, as it depended on the effectiveness of the interim system and on the scope of the questions emerging within the process of the interim system application.

485. Members welcomed the information on the regulation of goods containing encryption technology. These Members, however, expressed concerns about how the Russian Federation would ensure that goods not containing encryption technology would be excluded from any requirements relating to importation of goods containing such technology. In their view, goods that did not contain encryption technology should not be subject to any encryption-related requirements or formalities. Further, the Russian Federation should not require an activity licence for the importation of: (i) goods containing encryption technology that were not subject to requirements or formalities related to encryption; and (ii) goods subject only to notification requirements.

486. The representative of the Russian Federation confirmed that goods that did not contain encryption technology would not be subject to any encryption-related requirements or formalities. He further confirmed that activity licenses would not be required as a condition for importation of goods that were not subject to requirements or formalities related to encryption and goods subject only to notification requirements. The Working Party took note of these commitments.

487. The representative of the Russian Federation confirmed that, from the date of accession, quantitative restrictions on imports, such as quotas, bans, permits, prior authorization requirements, licensing requirements or other requirements or restrictions having equivalent effect that could not be justified under the provisions of the WTO Agreement would be eliminated and not introduced, re-introduced or applied, whether by the Russian Federation or the competent bodies of the CU. From the date of accession, any such requirements or restrictions on imports, whether applied by the Russian Federation or the competent bodies of the CU, would be in conformity with the provisions of the WTO Agreement. He confirmed that the administrative procedures of the Russian Federation for the operation of its import licensing regime and their application would, from the date of accession, be in compliance with all relevant provisions of the WTO Agreement, including the Agreement on Import Licensing Procedures. The Working Party took note of these commitments.

Customs Valuation

488. The representative of the Russian Federation stated that the basic provisions relating to customs valuation principles and policies in the Russian Federation were contained in the Agreement on the Determination of Customs Value of Goods, Transferred Across Customs Border of the Customs Union of 25 January 2008 (hereafter in this Section: the CU Agreement) and the Customs Code of the Customs Union, adopted on 27 November 2009 (hereafter: the CU Customs Code). The CU Agreement and the CU Customs Code entered into effect in the Russian Federation on 1 July 2010. Prior to 1 July 2010, customs clearance and control in the Russian Federation, including customs valuation, had been carried-out in accordance with national legislation, principally the Law of the Russian Federation No. 5003-1 of 21 May 1993 "On Customs Tariff" (as amended by Federal Law No. 144-FZ of 8 November 2005) (hereafter: the Customs Tariff Law) and the former Customs Code of the Russian Federation (Federal Law No. 61-FZ of 28 May 2003). The CU Agreement specified those areas that were to be implemented through national legislation. For the Russian Federation, this legislation was principally Part III of the Customs Tariff Law. In other cases the CU Agreement applied directly as law. Provisions of the Code No. 195-FZ of 30 December 2001 "On Administrative Offences of the Russian Federation", and the "Arbitration Procedural Code of the Russian Federation" No. 95-FZ of 24 July 2002 related to customs valuation also continued to apply after 1 July 2010. Additional legal provisions for customs valuation were found in the Federal Law "On Customs Regulation" and in other related national legal acts.

489. The representative of the Russian Federation further explained that, in accordance with Article 1.3 of the CU Agreement, the relevant provisions of the CU Agreements and national legislation were based on the provisions of the WTO Agreement on Implementation of Article VII of the GATT 1994 (hereafter: CVA) and that it was the intent of his Government to fully implement that Agreement. All six methods of customs valuation applied were based on the provisions of Articles 1, 2, 3, 5, 6, 7 and 8 of the CVA, including most of the provisions of the Interpretative Notes. In particular, Article 2 and Article 4.1 of the CU Agreement established that the "Customs valuation of imported goods shall be, as a matter of principle, based on the price of transaction with these goods..." and "The customs value of goods imported to the Common Customs Area of the Customs Union was the price of the respective transaction, i.e., the price actually paid or payable for these goods sold for export to the country of importation to the Common Customs Area of the Customs Union...". The provisions of Articles 9, 10, 11, 12, 13 and 16 of the CVA were also incorporated in these documents and implemented by the provisions of the national law of the Russian Federation. The rest of the Interpretative Notes would be incorporated either in Ministerial Orders (e.g., the Ministry of Finance) or in a decision of the CU Commission. In his view, the CU Agreements and the existing and prospective national legislation laid out a predictable and transparent regime on customs valuation and, once fully implemented, would establish the customs valuation regime of the Russian Federation in conformity with the CVA.

490. The representative of the Russian Federation stated that the methods of valuation provided for in the CVA other than the transaction value were contained in Articles 6 to 10 of the CU Agreement and Articles 19 to 24 of the Customs Tariff Law.

491. He noted that Article 10 of the CU Agreement and Article 24 of the Customs Tariff Law provided for the use of the fall-back method. If the customs value of the imported goods could not be determined under the provisions of Articles 4 and 6 to 9 of the CU Agreement (Articles 19 to 23 of the Customs Tariff Law), the customs value would be determined using reasonable means consistent with the principles and general provisions of the CU Agreement.

492. The methods of customs valuation used under the fall-back method were generally the same as those provided by Articles 19 to 23 of the Customs Tariff Law and consistent with the provisions of Articles 4 and 6 to 9 of the CU Agreement; however, these methods were to be applied with some flexibility. For example, the following was allowed:

a. determination of customs value could be based on the transaction value of identical or similar goods produced in the country other than the country of production of the goods being valued;

b. in determining customs value using the transaction value of identical or similar goods, a reasonable flexibility was allowed in respect of the interpretation of the requirement of Articles 6 and 7 of the CU Agreement and Articles 20 and 21 of the Customs Tariff Law that the identical or similar goods should be exported at or about the same time as the goods being valued, as a rule, up to 90 days;

c. customs values of identical or similar imported goods already determined under the provisions of Articles 8 and 9 of the CU Agreement and Articles 22 and 23 of the Customs Tariff Law could be used in determining customs value; and

d. in determining customs value using the deductive method, the "90 days" requirement established by paragraph 3 of Article 8 of the CU Agreement and paragraph 3 of Article 22 of the Customs Tariff Law could be administered flexibly (in accordance with the Interpretative Note to Article 7.3 (c) of the CVA).

493. The representative of the Russian Federation also noted that the customs value of exports was determined in accordance with paragraph 2 of Article 13 and Article 14 of the Customs Tariff Law, Article 112 of the Federal Law "On Customs Regulation" and Government Resolution No. 500 of 13 August 2006 "On the Procedure of Determination of Customs Value of Goods, Conveyed across the Customs Border of the Russian Federation" (as amended by Government Resolution No. 772 of 2 October 2009). This Resolution approved:

- "Rules of Determination of Customs Value of Imported Goods in Cases of their Illegal Conveyance across the Customs Border of the Russian Federation";

- "Rules of Determination of Customs Value of Imported Goods in Cases of Damage of Goods owing to an Accident or force majeure"; and

- "Rules of Determination of Customs Value of Goods, Exported from the Customs Territory of the Russian Federation".

He also noted that these Acts had been amended on the basis of the provisions of the CU Agreement and had been provided to the Working Party.

494. The representative of the Russian Federation also pointed out that, pursuant to the provisions of the "Rules of Determination of Customs Value of Goods, Exported from the Customs Territory of the Russian Federation", the determination of customs value of exported goods was made in accordance with the methods stated in Articles 4 and 6 to 9 of the CU Agreement. If the exported goods were not subject to any duties, a customs value was not determined and declared. The procedures for declaration and control of customs value of exported goods were stipulated by the competent Federal body in accordance with the Federal Customs Service Order No. 932 of 27 September 2006 and of Federal Customs Service Order No. 2417 of 16 April 2008.

495. The representative of the Russian Federation added that, in accordance with Article 2 of the CU Customs Code, the term "customs territory of importation", as defined in Article 15.2 of the CVA, was the Common Customs Area of the Customs Union, consisting of the territories of the Republic of Belarus, the Republic of Kazakhstan, and the Russian Federation, as well as artificial islands, installations and other objects located beyond the territory of CU Members in respect of which those CU Members enjoy exclusive jurisdiction. Article 3 of the CU Agreement confirmed that goods "produced" in the customs territory (including identical or similar goods) included those extracted, raised, or manufactured, as defined in Article 15.1 of the CVA. Concerning the definition of "goods of the same class or kind" found in Article 15.3 of the CVA, he confirmed that the term used in Article 3 of the CU Agreement, i.e., that these goods belong to "one or the same group of goods or a line of commodities, which are manufactured in the framework of a certain economic activity", has the same meaning as referred to in the CVA. These provisions continued to be implemented through the Customs Tariff Law.

496. A Member expressed concern regarding the treatment of related parties and noted, in this regard, that Article 4.4 of the CU Agreement, requiring the imported good in such cases to meet certain price benchmarks. This did not appear to be consistent with either Interpretative Note 1 to Article 1.2 (a) and (b) of the CVA or with Article 4.3 of the CU Agreement. The representative of the Russian Federation responded that, in accordance with Article 4.3 of the CU Agreement, the fact that the buyer and the seller were related should not in itself be grounds for regarding the transaction value as unacceptable. In such case, the circumstances surrounding the sale should be examined. If on the basis of information, presented by the declarant or received by the customs administration by other means, signs that such relationship had influenced the price were discovered, the customs administration should inform the declarant in written form about such signs. The declarant was then entitled to demonstrate to the customs administration that the relationship did not influence the price. He also noted that, in a sale between related persons, the transaction value also should be accepted whenever the declarant demonstrated that such value closely approximated one of the following occurring at or about the same time:

- the transaction value in sales to unrelated buyers of identical or similar goods for export to the Russian Federation;

- the customs value of identical or similar goods as determined under the provisions of Article 8 of the CU Agreement; or

- the customs value of identical or similar goods as determined under the provisions of Article 9 of the CU Agreement.

497. The representative of the Russian Federation confirmed that from the date of accession, in accordance with the WTO Agreement on Implementation of Article VII of the GATT 1994 ("CVA"), the Russian Federation would accept two means of establishing the acceptability of a transaction value between related parties, i.e., the analysis of the circumstances surrounding the sale, as well as the demonstration by the declaring party that the transaction value closely approximates the "test value" indicated by the customs administration. He added that the provisions of Article 8.3 of the CVA that require that additions to the price paid or payable would be made only on the basis of "objective and quantifiable data" were implemented in Article 5.3 of the CU Agreement which refers to "reliable and computable information". The representative of the Russian Federation also confirmed that Article 8.1 of the CU Agreement and Article 22 of the Customs Tariff Law provided that the priority of application of Articles 8 and 9 of the CU Agreement (corresponding to Articles 5 and 6 of the CVA) was determined at the request of the importer, in accordance with Article 4 of the CVA. The Working Party took note of these commitments.

498. In addition, the representative of the Russian Federation confirmed that, pursuant to Article 1.2 of the CU Agreement, Article 70 of the CU Customs Code, and Articles 117 and 123 of the Federal Law on Customs Regulation, customs payments included: import customs duty; export customs duty; value-added tax levied upon importation of goods into the customs territory of the Russian Federation; excise tax levied upon importation of goods into the customs territory of the Russian Federation; and customs fees. Chapter 16 of the Administrative Code of the Russian Federation provided that the valuation provisions of customs legislation would also be used in the determination of fines applied to imports or exports in the case of administrative liability for violations of the customs legislation.

499. Members thanked the Russian Federation for its explanations of the provisions of CU Agreements and Protocol and its national legislation that implemented the CVA, which appeared to address many of their concerns. However, some additional aspects of the CVA did not appear to be reflected in the CU documents. These included deficiencies related to: (i) acceptance of a related party transaction value and the circumstances of sale test; (ii) the right to a written explanation as to how the customs value was determined; (iii) the establishment of a publication requirement for the exchange rate used in valuation; (iv) confidentiality requirements for data provided; (v) the right of appeal "without penalty" to a judicial authority; and (vi) the publication of all laws, regulations, judicial decisions and administrative rulings of general application. The CU Agreement and Protocol and national implementing legislation also appeared to lack a provision for the acceptance of paragraph 2 of Decision No. 4.1 of the Technical Committee on Customs Valuation, which provided that the "Valuation of Carrier Media Bearing Software, for Data Processing Equipment" should be based on the value of the media, and Decision No. 3.1 "On the Treatment of Interest Charges in the Customs Value of Imported Goods".

500. Members also noted that the CU Agreement did not appear to contain adequate provision for the use of a guarantee system, including use of a surety bond, to allow clearance of goods through customs if the final determination of customs value had been delayed, as required by Article 13 of the CVA. In addition, many of the Interpretative Notes, contained in Annex 1 of the CVA which was an integral part of that Agreement, were not fully reflected in any of the CU or national legislation provided by the Russian Federation for Working Party review. Members sought assurances that these deficiencies would be addressed and corrected in further amendments to national laws or in implementing regulations.

501. Members sought a commitment that the CU Agreement and Protocol, and the national legislation of the Russian Federation on customs valuation would be brought into full conformity with the provisions of the GATT 1994 and the CVA and that the relevant laws, regulations and practices would be fully consistent with the relevant WTO provisions, as from the date of accession. They further asked the Russian Federation to commit not to use minimum values, reference prices or fixed valuation schedules to establish the customs value of imports.

502. In response, the representative of the Russian Federation said that provisions concerning the acceptance of a related party transaction value and the circumstances of sale test had been included partially in Article 4.3 of the CU Agreement. Implementation was addressed in Article 19 of the Law of the Russian Federation No. 5003-1 of 21 May 1993 "On Customs Tariff" (as amended on 3 December 2007). The remainder of the provisions would be implemented through a CU Commission decision or additional national regulation prior to accession. Terms such as identical goods, similar goods, and related parties were used as described in Article 15 of the WTO Customs Valuation Agreement, and their definitions could be found in Article 3 of the CU Agreement. Regarding the publication of the exchange rate, he noted that the requirements of Article 9 of the WTO Customs Valuation Agreement had been integrated in Article 78 of the CU Customs Code. Pursuant to this Article, customs authorities of the relevant CU Party were required, for the calculation of customs duties and taxes and the determination of customs value, to use the exchange rate established in accordance with the national legislation of this CU Member. In the case of the Russian Federation, this was accomplished by paragraph 15 of Article 4 of Federal Law No. 86-FZ of 10 July 2002 "On the Central Bank of the Russian Federation" (as amended by Federal Law No. 216-FZ of 22 September 2008) and the "Order of the Central Bank of the Russian Federation" (as amended on 26 April 2007). According to these measures, the Central Bank fixed and published the official exchange rate of foreign currencies with respect to the Ruble, and the information could be accessed on the Internet (www.cbr.ru).

503. Concerning confidentiality requirements (Article 10 of the CVA), he noted that Article 8 of the CU Customs Code prescribed the measures customs authorities should take to protect information provided to them for customs purposes. In addition, Article 114 of the Federal Law on the Customs Regulation provides that "...a customs body and declarant may exchange information provided that the requirements to protect commercial secrets stated in the legislation of the Russian Federation are fulfilled". Article 13 of Federal Law No. 98-FZ of 29 July 2004 "On Commercial Secrets" established requirements for all government authorities and bodies to ensure the protection of confidential information presented to them by legal persons or individual entrepreneurs. This included information provided by declarants for customs purposes, including valuation. He also confirmed that the exceptions to confidentiality were limited to judicial proceedings.

504. The obligations of the Russian Federation with respect to Article 12 of the WTO Customs Valuation Agreement were dealt with in Article 10 of the CU Customs Code which stipulates that all acts of customs legislation were to be published in official or other publications as well as via TV, radio and information technologies. The CU Commission was to provide free access for persons concerning CU legislation published in official publications or on official internet websites. Article 51 of the Federal Law "On the Customs Regulation" provides that a competent customs Federal body and other customs authorities were to ensure free and gratuitous access to the information about legal acts in force in the sphere of customs affairs. Customs bodies were to ensure access to the information concerning draft legal acts as well as to the information about amendments to them not entered into force except for the cases when such preliminary notice would impede the fulfilment of customs control or reduce its effectiveness. In accordance with the Statute of the EurAsEC Court, all its rulings were to be published in official sources of the EurAsEC Court, the EurAsEC, the CU and CU Parties.

505. In response to a question from a Member in respect of who could declare goods and the obligations and rights of the declarant with regard to a declaration, the representative of the Russian Federation referred to Chapter 27 of the CU Customs Code, in particular Articles 179 through 194 that described customs declaration of goods, including who could declare goods and the rights and obligations of the declarant.