FEDERATION TO THE WORLD TRADE ORGANIZATION 26 страница

709. One Member of the Working Party asked a question regarding the responsibilities of MIT in carrying out the CU harmonized regime: which organizational measures had been taken to avoid a conflict of interest between its accreditation, certification, standardization and regulatory tasks. In response, the representative of the Russian Federation stated that MIT did not perform certification, standardization and accreditation activities. He also explained that Article 3 of Federal Law No. 184-FZ as well as Article 3 of the CU Agreement on Mutual Recognition of Accreditation Bodies prohibited any person or body from performing certification and accreditation activities simultaneously (these activities must always be performed by different entities). MIT was responsible for developing national policy in the area of technical regulation and metrology in accordance with EurAsEC and CU Agreements and EurAsEC and CU Acts as well as for supervising the development of draft technical regulations. Pursuant to Presidential Decree No. 86, MED developed policy in the area of accreditation, and would, from the end of 2011, oversee the single national accreditation body that would be responsible for accreditation and inspection of bodies that performed conformity assessment in the Russian Federation, for national, CU, and EurAsEC technical regulations and for the remaining mandatory national standards. Obligatory certification of compliance for products circulated on the territory of the Russian Federation was carried out by separate legal entities (legal persons, e.g. Joint Stock Companies). These conformity assessment bodies must either be accredited by the single national accreditation body, or by similar national authorities in other CU Parties and included in the CU Unified Register. He noted that use of the term "body" in respect of these entities was the result of international practice, and did not mean that these entities were governmental or administrative bodies.

710. The representative of the Russian Federation further explained that the Sub-Commission on Technical Regulation of the Governmental Commission on Economic Development and Integration, created in accordance with Government Resolution No. 1166 of 30 December 2009 "On the Governmental Commission on Economic Development and Integration", was an inter-ministerial body, which was responsible for coordination of the Federal Executive bodies of the Russian Federation regarding implementation of policy in the field of technical regulation. The Sub-Commission included representatives of all relevant Federal Executive authorities, involved in technical regulation procedures (for further details, see Table 37).

711. A separate group, the Public Board on Technical Regulation, which was established in accordance with the Order of the Ministry of Industry and Trade of the Russian Federation No. 84 of 26 January 2011 (as last amended on 27 May 2011) (Order No. 84), was empowered to submit recommendations and proposals to MIT aimed at improving technical regulation. The Board was organized as a forum for interested representatives of business, science, academia, government, and other fields to discuss matters related to technical regulations. Any person representing the interests of domestic or foreign companies or a public organization (including business associations) established in the Russian Federation could apply for membership. There were no requirements for citizenship or residence, as stipulated by the provisions of Order No. 84. The recommendations and proposals of the Board were regarded only as advice. Although it was an independent body, the Board closely cooperated with relevant CU and Federal Executive bodies, as well as scientific, research, and other organizations, on a regular basis. The Board also organized and held additional public consultations on draft technical regulations. MIT performed only the secretarial functions of the Board.

712. The representative of the Russian Federation confirmed that pursuant to national, CU and EurAsEC mechanisms for consultation with the public (including interested persons from countries not Members of the EurAsEC and CU) would be maintained from the date of accession in conformity with the provisions of the WTO TBT Agreement to inform and consult with, on an ongoing basis, CU and EurAsEC bodies, government agencies and ministries (at the national and sub-national levels), and private sector interests on the development and application of technical regulations, standards, including sets of rules, and conformity assessment procedures to be applied on the territory of the Russian Federation. The Working Party took note of this commitment.

(c) Technical Regulations, International and National Standards, and Conformity Assessment Procedures

(i) Technical Regulations

713. The EurAsEC Agreements on the Basics of Technical Regulation Harmonization and on Technical Regulation Policy Coordination; the CU Agreements on Uniform Technical Regulation Principles, on Mandatory Conformity Assessment, and on Mutual Recognition of Accreditation Bodies; and Federal Law No. 184-FZ provided for the implementation of the following principles based on the provisions of the WTO TBT Agreement:

- Application of non-discrimination and a national treatment regime. Technical regulations were to be applied in the same manner and to the same extent irrespective of the country and/or place of origin of products, the nature and details of the transactions and/or natural or legal persons (Article 7 (6) of Federal Law No. 184-FZ).

- Elimination of technical barriers to trade. Requirements of technical regulations must not create any barriers to business activity beyond the levels necessary to achieve legitimate objectives, such as the protection of human life or health, property, environment, life or health of animals and plants, and prevention of actions that might mislead consumers (Article 5.1 of the EurAsEC Agreement on Technical Regulation Policy Coordination); as well as for the purpose of ensuring energy efficiency and resource saving (Articles 6 (1) and 7 (2) of Federal Law No. 184-FZ and Article 4.2 of the CU Agreement on Uniform Technical Regulation Principles); and removing unnecessary restrictions in mutual trade (Article 2.1 of the Agreement on the Basics of Technical Regulation Harmonization).

- Harmonization of technical regulations with relevant international standards. (Articles 7 (8) and 7 (9) of Federal Law No. 184-FZ, Articles 5.2 and 10 of the EurAsEC Agreement on Technical Regulation Policy Coordination, Articles 4.4 and 4.5 of the CU Agreement on Uniform Technical Regulation Principles, CU Commission Decision No. 625 as amended by CU Commission Decision No. 722 of 22 July 2011).

- Harmonization of conformity assessment procedures with relevant international standards, relevant guides, or recommendations issued by international standardizing bodies.

- Harmonization and voluntary application of standards. Standardization must be carried out according to the principle of use of a relevant international standard as the basis for development of a national standard, except where such documents do not comply with purposes of adoption of technical regulations, including due to the effects of climatic and geographic factors or technology problems. (Article 12 of Federal Law No. 184-FZ and Article 8.1 (d) of the EurAsEC Agreement on Technical Regulation Policy Coordination).

- Transparency in the development of technical regulations and standards (Articles 9 and 9.1 of Federal Law No. 184-FZ), CU Commission Decision No. 527, and EurAsEC Interstate Council Decision No. 1175): Any legal or natural person, foreign or domestic, or governmental or non-governmental body may act as the developer of a draft technical regulation. A notification about the development of a draft technical regulation must be published in the print media of Rosstandart, on the official websites of the government body on technical regulation (MIT), the CU Commission or EurAsEC, as relevant at an early appropriate stage in its development. The notification must contain information on name and object of the technical regulation; object characteristics in relation to which the requirements had been developed, with a summary of the purpose of the technical regulation. The notification would specify whether the requirements being developed, differed from relevant international standards or obligatory requirements valid in the territory of the Russian Federation and would indicate the source of information on the draft technical regulation, i.e., the name of the developer of the given draft technical regulation, as well as his contact information for the receipt of written comments from interested persons and the last day for the submission of comments. The draft technical regulation would be available to interested persons as of the date of publication of this notification. The developer was required to supply, upon demand, any interested person with a copy of the draft technical regulation. The payment for providing the copy was not to exceed the cost of its issuance. The developer was required to carry out a public consultation on the draft technical regulation, consolidate written comments received from interested persons, provide responses to comments received and update the draft technical regulation taking into account the written comments received. The developer was required to save the written comments received from interested persons up to the date of entry into force of the technical regulation, and, upon request, to hand them over to representatives of the government bodies of the Parties on technical regulation (e.g., in Russia, MIT) and the CU Commission or the Interstate Council of EurAsEC as relevant. In all cases, expert examination of a draft technical regulation was carried out by an Expert Commission on technical regulation, composed of, inter alia, representatives of relevant government bodies, research institutions, self-regulated organizations, public associations of entrepreneurs and consumers. Meetings of the Expert Committee were held in open session, and its conclusions and recommendations must be subject to mandatory publication in the print media of Rosstandart and in the public information system in electronic digital form. The procedure for the publication of such conclusions and the amount of charge for their publication was established by the Government of the Russian Federation. The period for public discussion of the draft technical regulation - from the date of publication of the notification about development of the draft technical regulation up to the date of publication of the notification about completion of the public discussion - could not be less than two months. The notification about completion of public discussion on the draft technical regulation had to be published in the print media of Rosstandart and on the official websites of the government body on technical regulation (MIT) and the CU Commission and the EurAsEC, as relevant, in electronic form. The notification about completion of the public discussion would include the sources of information on the draft technical regulation, the list of written comments received from interested persons, responses to comments received, and the name of the developer of the draft technical regulation, along with his/her contact information. From the date of publication of the notification about completion of the public discussion, the updated draft technical regulation and the list of written comments received would be available to interested persons (Article 9 of Federal Law No. 184-FZ, CU Commission Decision No. 527, EurAsEC Intestate Council Decision No. 1175). The Russian Federation would provide notification of the development of a draft technical regulation in accordance with Article 2.9 of the WTO TBT Agreement.

- Natural and legal persons also could propose draft technical regulations to MIT for the Ministry to decide whether development of the technical regulation was reasonable. In case of a positive decision, MIT would submit a proposal to develop a technical regulation to the CU Commission or EurAsEC, as appropriate. Procedures for development of a technical regulation were set-out in CU Commission Decision No. 527 or EurAsEC Interstate Council Decision No. 1175 respectively.

- Establishment of conformity assessment procedures (including the criteria by which the Russian Federation designated or otherwise recognised conformity assessment bodies and their results) was according to the following principles: non-discrimination between domestic and imported products and among suppliers of imported products, both in terms of procedures and in terms of fees; proportionality of procedures to the level of risk; transparency and predictability of the procedures; and protection of confidentiality.

- Recognition of conformity assessment results in accordance with international treaties of the Russian Federation and other international arrangements: Documents of the confirmation of compliance and reports of research (tests) and measurement of products, obtained outside the Russian Federation, could be recognised in accordance with the international treaties of the Russian Federation (Article 30 of Federal Law No. 184-FZ and Article 5 of the CU Agreement on Mandatory Conformity Assessment) and other international arrangements. Currently, the Russian Accreditation Body Association of Analytical Centres "Analitica" (AAC Analitica) was a member of the International Laboratory Accreditation Cooperation (ILAC) and a signatory to the ILAC Arrangement with regard to standards. Once the single national accreditation body of the Russian Federation was established, as expected by 30 June 2012, it intended to join ILAC which would facilitate recognition of the results of the assessments of the laboratories and assessment bodies accredited by ILAC Members. Before this occurs, the Russian Federation was ready to conclude bilateral and multilateral arrangements with interested WTO Members, including recognition of results of activity of third-country certification bodies.

- Technical regulations were to contain requirements in terms of performance of product characteristics or their related processes or production methods, including design criteria (including testing), production, construction, assembly (set-up), operation, storage, transportation, realization and utilization, as well as rules of identification, forms, schemes and procedures of assessment (confirmation) of compliance, rules for identifying the requirements for terminology, packing, marking or labelling rules and their application and reclamation, rather than requirements regarding design or descriptive characteristics, except where the purposes of adopting such technical regulations could not be achieved in the absence of requirements in respect of design and descriptive characteristics in view of the risk of damage (Article 7 (4) of Federal Law No. 184-FZ; Article 2.2 of the EurAsEC Agreement on the Basics of Technical Regulation Harmonization; and Article 4.3 of the CU Agreement on Uniform Technical Regulation Principles).

714. The representative of the Russian Federation confirmed that the Russian Federation would, from the date of accession, ensure that all technical regulations, standards, and conformity assessment procedures applied in the territory of the Russian Federation would continue to respect the principles set-out in paragraph 713 above, and the provisions set-out in the WTO TBT Agreement, such as transparency, non-discrimination and national treatment. The Working Party took note of this commitment.

715. The representative of the Russian Federation confirmed that, from the date of accession, its Federal Governmental Bodies would prepare and apply all technical regulations, including those adopted by the competent bodies of the EurAsEC and the CU, in accordance with the WTO Agreement, in particular with the provisions of Article 2 of the WTO TBT Agreement. He also confirmed that the Federal government would take such reasonable measures as may be available to it to ensure compliance by local governmental and non-governmental bodies with the provisions of Article 2 of the TBT Agreement, as provided for in Article 3.1 of the WTO TBT Agreement, and would act in accordance with other provisions of Article 3 of the WTO TBT Agreement. The Working Party took note of these commitments.

716. Members thanked the representative of the Russian Federation for this explanation of the revised regime of the Russian Federation for developing technical regulations, standards and conformity assessment systems as provided for in EurAsEC and CU Agreements, in other EurAsEC and CU Acts, and in Federal Law No. 184-FZ. Some Members requested clarification that these international agreements and other CU and EurAsEC Acts, some of which were directly applied in the Russian Federation, and Federal Law No. 184-FZ met other requirements of the WTO TBT Agreement. With respect to the purposes of technical regulation noted in Federal Law No. 184-FZ, as well as in the EurAsEC Agreement on Technical Regulation Policy Coordination and the CU Agreement on Uniform Technical Regulation Principles, some Members noted that some of the fundamental purposes, in particular protection of property, set-out in the Law and these Agreements were not contained in the illustrative list of legitimate objectives in Article 2.2 of the WTO TBT Agreement. In response, the representative of the Russian Federation explained that with respect to the aim of protecting property, this purpose related to matters such as regulations governing fire codes for warehouses, which were typically unoccupied.

717. In response to a question from a Member about consistency of the provisions of Article 7.4 of Federal Law No. 184-FZ with the relevant provisions of the WTO TBT Agreement in terms of establishing requirements of design characteristics of products, the representative of the Russian Federation stated that Article 5.1 of the EurAsEC Agreement on Technical Regulation Policy Coordination and Article 4.2 of the CU Agreement on Uniform Technical Regulation Principles established the purposes for which technical regulations applied on the territory of the Russian Federation could be established. This would preclude requirements for the design and descriptive characteristics of a product, unless it was clear, after taking into account the risk of potential harm, that design and descriptive characteristics were necessary to attain the goals of the technical regulation, as indicated in these provisions. These provisions, in his view, were fully consistent with the provisions of Article 2.8 of the WTO TBT Agreement.

718. With respect to elimination of barriers to trade (business activity), Members sought assurances that the Russian Federation would consider, inter alia, available scientific and technical information, related to processing technology or intended end-uses of products and the risks that non-fulfilment of such legitimate objectives would create when assessing whether legitimate objectives had been met, and would ensure that Rosstandart and the EurAsEC and CU bodies involved in the preparation of technical regulations would consider these factors as well. With respect to adoption of technical regulations, where technical regulations were required and relevant international standards existed or their completion was imminent, Members sought confirmation that the Russian Federation would use such standards, or the relevant parts of them, as a basis for its technical regulations, and would ensure that EurAsEC and CU bodies adopting technical regulations applied on the territory of the Russian Federation would do so as well, except when such international standards or relevant parts would be an ineffective or inappropriate means for the fulfilment of the legitimate objectives pursued, for instance because of fundamental climatic or geographical factors or fundamental technological problems. One Member reiterated that the Russian Federation should only seek exceptions to international standards where there was a legitimate reason to do so (as envisaged by the WTO TBT Agreement).

719. In response, the representative of the Russian Federation referred to paragraph 702 of this Report. Article 4.4 of the CU Agreement on Uniform Technical Regulation Principles provided for the use of international standards or relevant parts as the basis for the development of technical regulations "except in cases where such documents did not conform with the purposes of the technical regulations of the Customs Union." He confirmed that this provision would be interpreted and applied in accordance with Article 2.4 of the WTO TBT Agreement, i.e., that such international standards or relevant parts would be used for the development of technical regulations unless they were "an ineffective or inappropriate means for the fulfilment of the legitimate objectives pursued." The Working Party took note of this commitment.

720. One Member noted, regarding transparency in the development of technical regulations and standards, that, according to Article 2.9.3 of the WTO TBT Agreement, the Russian Federation should, upon request, provide to other Members, particulars or copies of the proposed technical regulations, and that the supply of the copies must be free of charge. In response, the representative of the Russian Federation explained that, according to provisions of Federal Law No. 184-FZ, the developer of a technical regulation was required to provide copies of drafts of technical regulations upon payment of a fee that could not be more than the cost of producing the copy. He noted that this provision did not relate to the obligation of the Russian Federation to provide drafts of technical regulations to WTO Members as required under the WTO TBT Agreement. Accordingly, the Single Enquiry Point on TBT would provide drafts of technical regulations at the request of a WTO Member free of charge. He added that existing drafts of technical regulations in preparation by EurAsEC and CU bodies already were publicly available free of charge in digital electronic form on the EurAsEC or CU Commission websites respectively and at the website of Rosstandart. The 24 national technical regulations of the Russian Federation, already adopted under the process provided for in Federal Law No. 184-FZ, also were available on the website of Rosstandart.

721. In response to a question from a Member about availability of draft technical regulations in languages other than Russian, the representative of the Russian Federation explained that, as a rule, the drafts were available in the language in which they had been developed for adoption, i.e., in Russian. However, the right of the developer to provide to interested persons copies of drafts also in any other languages was not restricted.

722. Another Member asked the Russian Federation to provide a more detailed explanation of the procedure of development and adoption of technical regulations in the Russian Federation. In response, the representative of the Russian Federation explained that the development, adoption, amendment and cancellation of technical regulations of the CU and EurAsEC were carried out in accordance with Articles 9 and 9.1 of Federal Law No. 184-FZ, CU Commission Decision No. 527, and EurAsEC Interstate Council Decision No. 1175.

723. In response to questions by some Members concerning ongoing activity of the Government of the Russian Federation aiming at implementation of Federal Law No. 184-FZ, the representative of the Russian Federation informed Members of the Working Party that the Government of the Russian Federation had adopted the Program of Development of Technical Regulations, approved by Order No. 1421-r of 6 November 2004 (as last amended on 9 March 2010). The Program, reviewed annually, eventually developed 49 draft national technical regulations and ultimately adopted 24 national technical regulations by the end of 2010, with a special focus on the priority technical regulations that had been listed in Federal Law No. 184-FZ. The Program had been replaced when the Russian Federation agreed with Kazakhstan and Belarus to establish the harmonized system of technical regulation within the CU described in paragraphs 699 through 706 of this Report, and the development of technical regulations in the Russian Federation from that time focused on the development and adoption of the list of priority technical regulations contained in EurAsEC Interstate Council Decision No. 521 and CU Commission Decision No. 492. These priority technical regulations were listed in Table 36.

724. The representative of the Russian Federation continued to explain that under the CU any domestic or foreign physical or legal person or governmental or non-governmental body could develop a draft technical regulation. Such person or entity was required to publish a notice on the development of the draft technical regulation and then to provide for a public consultation and comment on the draft, in accordance with the requirements, described in paragraph 705 above. In addition, third-country interested parties could provide comments on draft technical regulations proposed by any of the EurAsEC or CU Parties, as established in Article 6 of the EurAsEC Interstate Council Decision No. 1175 and Article 7 of the CU Commission Decision No. 527, respectively. After the public consultation process, the draft was submitted to the national body responsible for technical regulation policy (MIT) which approved it. Responding to a question on how draft technical regulations, not based on international standards, could be revised prior to application, he stated that the applicable laws and acts specified the priority use of international standards as the basis for technical regulations and that the technical regulation developer was required to provide his assessment on how the draft was consistent with international standards in his notification of the draft for public comment. The technical regulation developer was also required to identify the standards used in constructing the draft technical regulation. When the national authorised body received comments provided by the public on these materials, it forwarded them to the relevant expert commission established in accordance with Article 9.9 of Federal Law No. 184-FZ and described in paragraph 713. This commission included an equal number of experts representing government bodies, academia and business/consumers associations. The meeting of the relevant commission was public and its decisions were publicly available. The commission would take into account the requirement to use international standards and, if necessary, urge appropriate changes. The resulting draft was submitted to the national authorised body which forwarded it to the CU Commission. The CU Commission in turn placed the draft technical regulation, a notice on how it was developed, and an explanatory note on its own official website and on the official websites of the authorised bodies for technical regulation of the other CU Parties. Interested domestic and foreign legal and natural persons (including those from non-members of the CU) could submit their comments and suggestions on the draft technical regulations to the authorised body of the CU Party that proposed it and to the Secretariat of the CU Commission. The period for comments was at least 60 days following the publication of the first draft of the technical regulations by a CU body. He noted that government bodies submitted draft technical regulations and other documents to the CU Commission for adoption and that any amendments to a technical regulation were adopted within the same procedure.

725. One Member invited the Russian Federation to confirm that "trade impact" was part of the risk assessment included in the summary submitted by the developer of the draft technical regulation. In response, the representative of the Russian Federation explained that the developer was obliged to compose this summary objectively. Thus, if some of the comments received from the interested persons contained information on "trade impact", this must be included in the summary. In addition, MED was responsible for carrying out an assessment of the impact on trade of the draft technical regulations, pursuant to Government Resolution No. 437 of 5 June 2008 "On the Ministry of Economy of the Russian Federation". The trade impact assessment of MED was forwarded to the Government of the Russian Federation and used as part of the analysis by the Government on whether to approve the draft technical regulation.

726. One Member requested further information on the operations of the expert commission of the Russian Federation and the CU Committee on Technical Regulation with regard to the nature of the reviews these bodies would conduct and any systematic regulatory impact analysis that would be performed on each technical regulation proposal. This Member asked for explanation and assurances that proper mechanisms were in place at each stage to ensure conformity of draft regulations with rights and obligations under the WTO TBT Agreement. It also asked how the meetings and decisions of the expert commissions and the CU Committee on Technical Regulation were made public and whether they were accessible to interested international, as well as domestic, parties. In response, the representative of the Russian Federation stated that the commissions of experts were empowered to provide expert evaluations of draft technical regulations and proposals regarding their adoption, but the decision on what to submit to the CU Committee on Technical Regulation for coordination and review at the CU level was taken by the MIT. Such decisions could take into account expert commission proposals. The expert commission would review the draft of a technical regulation and other relevant information, including all comments regarding the draft, received from the interested persons. Regarding the mechanism of ensuring conformity of draft regulations with the provisions of the WTO TBT Agreement, he noted that the expert commissions, supervised by the MIT, were to act in conformity both with Federal Law No. 184-FZ and with the relevant EurAsEC and CU Agreements and other CU Acts which reflected the provisions of the WTO TBT Agreement. Specifically, these bodies were obliged to include in their evaluations the founded conclusions regarding the compliance of the drafts with the legislation of the Russian Federation and international norms and rules, including the WTO TBT Agreement. The meetings of the expert commissions were open to the public, and their decisions were published in the official journal of Rosstandart.