FEDERATION TO THE WORLD TRADE ORGANIZATION 27 страница

727. One Member asked whether, in those cases where the draft technical regulation differed from international standards, the Russian Federation had a policy requirement that regulators justify a deviation from the international standard. In response, the representative of the Russian Federation stated that, according to the provisions of Article 9.7 of Federal Law No. 184-FZ and CU Commission Decision No. 527, the procedure required that the cases of deviations from the international standards must be specifically justified in the findings supporting the adoption of the draft technical regulation, which must accompany the draft when it was submitted for adoption.

728. The representative of the Russian Federation confirmed that the Russian Federation would comply with all obligations of the WTO TBT Agreement, including those related to not creating unnecessary obstacles to trade. In addition, he confirmed that from the date of accession, relevant international standards, guides and recommendations as described in paragraph 747 would be used as the basis for technical regulations, whether developed by the Russian Federation or developed and adopted by the competent bodies of the CU as provided for by the WTO TBT Agreement. To this end, the Russian Federation would ensure that any exceptions to the use of international standards found in Federal Law No. 184-FZ or in EurAsEC and CU Agreements and other relevant EurAsEC and CU Acts corresponded to the exceptions permitted under the WTO TBT Agreement. The Working Party took note of these commitments.

(ii) Technical requirements not subject to Federal Law No. 184-FZ

729. The representative of the Russian Federation stated that in accordance with the provisions on technical regulation of the EurAsEC and CU Agreements and EurAsEC and CU Acts, mandatory technical regulations and mandatory conformity assessment procedures applied on the territory of the Russian Federation, could only be established by Decisions of the EurAsEC Interstate Council and the CU Commission, respectively. National technical regulations established by Federal Laws, Government Resolutions, and Presidential Decrees would be replaced by these instruments. In a few areas, however, mandatory requirements for products were laid out in domestic laws of the Russian Federation. For example, there were exemptions concerning requirements connected with ensuring the integrity and sustainable functioning of the national communications network of the Russian Federation and the use of the radio frequency spectrum or with ensuring national security (for instance, procurement of defence products) including nuclear safety, which were regulated by other legislation such as Federal Law No. 126-FZ of 7 July 2003 "On Communications," (as last amended on 7 February 2011) (hereafter: Law No. 126-FZ), Federal Law No. 170-FZ of 21 November 1995 "On the Use of Atomic Energy" (as last amended on 27 December 2009), and Federal Law No. 3-FZ of 9 January 1996 "On Radiation Safety of the Population" (as last amended on 23 July 2008). In his view, such legislation was applied in conformity with the provisions of the WTO TBT Agreement.

730. In addition, Articles 1 (3) and 1 (4) of Federal Law No. 184-FZ provided that social and economic, organizational, sanitary and hygienic, medical and preventive, and rehabilitation requirements in the sphere of labour protection; application of measures on prevention of the onset and spread of mass infectious diseases of humans, prevention and treatment of human diseases with the exception of requirements regarding medicines, medical equipment and food products which thus were not excluded from the coverage of the Law; and application of measures on protection of soil, air, and bodies of water at resorts, tourist destinations, and places for mass public recreation, were exempted from the coverage of Federal Law No. 184-FZ. Those requirements were regulated by other domestic legislation, such as the Law of the Russian Federation No. 5487-1 of 22 July 1993 "The Basis of the Legislation of the Russian Federation on the Protection of Health of Citizens (as amended on 28 September 2010); "Water Code of the Russian Federation" adopted by Federal Law No. 74-FZ of 3 June 2006 (as amended on 28 December 2010); "Forest Code of the Russian Federation" adopted by Federal Law No. 200-FZ of 4 December 2006 (as amended on 29 December 2010); and Federal Law No. 96-FZ of 4 May 1999 "On the Protection of Atmospheric Air" (as amended on 27 December 2009). These requirements typically did not concern the elaboration, enactment, and implementation of mandatory requirements for product characteristics or their related processes or production methods, including processes of design (including survey), production, construction, assembly (setup), operation, storage, transportation, sale, and reclamation. Mostly, these requirements provided for norms of human activity (economic or non-economic), including rules of use of natural objects (for example, regulations for construction work in the proximity of bodies of water or establishing responsibility for pollution of air and water; in specific areas connected with risks for human, animal or plant life and health. He reiterated that the requirements with respect to medicines, medical equipment, and food products were not covered by the exemptions and thus were subject to the provisions of the relevant EurAsEC and CU Agreements and other EurAsEC and CU Acts and Federal Law No. 184-FZ.

731. While this statement was considered as helpful to clarify the question of exceptions from the scope of Federal Law No. 184-FZ, some Members asked how these exceptions were addressed in EurAsEC and CU Agreements and other EurAsEC and CU Acts. They asked if the mandatory requirements established in these laws were considered to be technical regulations within the provisions of the relevant EurAsEC and CU Agreements and EurAsEC and CU Acts. They also expressed the concern that, at least in some cases, these exceptions could nevertheless relate to the elaboration, enactment and implementation of mandatory requirements for product characteristics or their related processes or production methods outside established regulatory norms that observed WTO provisions. Furthermore, these Members asked whether, if this were to be the case, the applicable legislation would contain sufficient guarantees that the principles of transparency, non-discrimination, and predictability as well as other principles of the WTO TBT Agreement would be fully respected when the relevant normative legal acts were elaborated, enacted, and implemented.

732. Concerning the relationship of the technical and other requirements for goods exempted from the coverage of Federal Law No. 184-FZ with CU Agreements and other CU Acts establishing the legal framework for technical regulation in the territory of the CU Parties and with the WTO TBT Agreement, the representative of the Russian Federation stated that in areas where mandatory requirements were not covered under Federal Law No. 184-FZ, e.g., sustainable functioning of the national communications network and nuclear equipment, or CU and EurAsEC Agreements and Acts, these goods were regulated by specific national legislation. While specific safety issues could be covered by technical regulations (e.g., safety to humans using telecommunications or nuclear equipment), other issues like system compatibility in telecommunications, labour safety requirements, and security aspects of nuclear products were managed separately. Not all mandatory requirements could be considered to be technical regulations. Current plans called for amendments to be made in the first half of 2012 to 51 laws containing such mandatory requirements. These amendments would clearly define those requirements that were technical regulations, and those that were not, even if they had a mandatory character.

733. In response to the questions of some Members in respect to specific features of technical regulation in the communication sector, the representative of the Russian Federation noted that the requirements connected with ensuring the integrity and sustainable functioning of the national communications network of the Russian Federation were established and governed by the legislation of the Russian Federation on communication. Pursuant to Article 41 of Federal Law No. 126-FZ, conformity assessment was mandatory for telecommunication equipment used in public telecommunication networks, as well as for industrial telecommunication networks and special telecommunication networks if they were connected to public networks. He noted that, in his view, this requirement was in compliance with the provisions of the Annex on Telecommunications to the WTO GATS (Item 5.e), which provided for the right of WTO Members to establish conditions on access to and use of public telecommunications networks which were necessary to protect the technical integrity of those networks. Conformity of this telecommunication equipment to technical regulations adopted by regulatory legal acts of the Federal Executive authority responsible for communications could be confirmed by mandatory certification or conformity declaration. Communications equipment also was subject to the following technical regulations: the technical regulation on low voltage equipment, the technical regulation on electromagnetic compatibility and the technical regulation on machines and equipment security. The list of telecommunication equipment subject to mandatory certification was approved by Government Resolution No. 896 of 31 December 2004 "On Approval of the List of Communication Equipment Subject to Mandatory Certification". According to Item 2 of that Resolution, telecommunication equipment subject to mandatory certification was excluded from the list of goods subject to mandatory confirmation of conformity at the moment of its importation to the territory of the Russian Federation. He also noted that the Ministry of Telecommunications and Mass Communications of the Russian Federation (MinComSvyaz) did not establish mandatory requirements for the products not included in the above mentioned list.

734. He further stated that the Government of the Russian Federation had adopted some normative legal acts aiming at implementation of Federal Law No. 126-FZ, namely Government Resolutions No. 165 of 29 March 2005 "On Approval of Rules of Accreditation of Certification Bodies and Test Laboratories (Centres) Engaged in Certification Testing of Communication Equipment" (as last amended on 4 May 2010) and No. 214 of 13 April 2005 "On Adoption of Rules for Organization and Performance of Compulsory Verification of Conformity of Communication Equipment" (as last amended on 13 October 2008). Since these requirements, technical regulations, and the other normative legal instruments existed for the technical regulation of telecommunications equipment in each of the CU Parties already, presently it was not planned to develop a unified technical regulation related to communication equipment within the Customs Union.

735. One Member requested clarification as to whether the Federal Executive authority responsible for communications also established any requirements for the equipment used in private networks. In response, the representative of the Russian Federation stated that MinComSvyaz did not establish technical requirements to the equipment used in telecommunications networks which were not connected to the national telecommunications network.

736. In response to a question by a Member about the plans of the Russian Federation to implement the APEC TEL Mutual Recognition Arrangement on conformity assessment for telecommunications equipment the representative of the Russian Federation explained that according to Article 41.2 of Federal Law No. 126-FZ the documents on conformity confirmation of telecommunications equipment, as well as the results of the tests of the communication equipment, shall be accepted in accordance with international treaties of the Russian Federation (see also the description of the relevant general provisions of Federal Law No. 184-FZ and the CU Agreement on Mandatory Conformity Assessment in paragraph 713 above). He noted, however, that the APEC TEL Mutual Recognition Arrangement was a regional initiative rather than an international treaty to which the Russian Federation was a party. In this context, the provisions of this arrangement did not currently have a binding character for the Russian Federation and would not be implemented in connection with the accession of the Russian Federation to the WTO.

737. Some Members expressed concern that Federal Law No. 126-FZ did not contain enough guarantees that the elements of transparency and predictability of the WTO TBT Agreement would be fully respected, namely, when the normative legal acts were drafted and approved. Furthermore, they considered that Federal Law No. 126-FZ did not provide for sufficient guarantees that the current system of conformity assessment, according to which all information technology and telecommunications equipment were subject to mandatory certification and to certificates of a limited validity period (maximum 36 months), would be revised. These Members requested the Russian Federation to take commitments that it would take measures to facilitate trade in information technology and telecommunications equipment products by addressing these concerns by the time of its WTO entry.

738. The representative of the Russian Federation confirmed that his Government would base all normative legal acts defining technical requirements for communications equipment and elaborated in accordance with Federal Law No. 126-FZ of 7 July 2003 "On Communications" (as last amended on 23 February 2011) on the principles of transparency, non-discrimination, and predictability of the EurAsEC Agreement on Implementation of Coordinated Policy in the Field of Technical Regulation, Sanitary and Phytosanitary Measures of 25 January 2008, the CU Agreement on Uniform Principles and Rules of Technical Regulation in the Republic of Belarus, Republic of Kazakhstan and the Russian Federation of 18 November 2010, and Federal Law No. 184-FZ of 27 December 2002 "On Technical Regulation" (as last amended on 28 September 2010). To that purpose, prior to the date of accession, a Government Resolution would be adopted, which would require that "normative legal acts" of MinComSvyaz must comply with the transparency and all other principles set-forth in the WTO TBT Agreement for the adoption of normative legal acts. The Russian Government would also limit the scope of application of these "normative legal acts" to technology-neutral regulation of legitimate public interest objectives as defined in the WTO TBT Agreement and the Annex on Telecommunications in the WTO General Agreement on Trade in Services (GATS). He added that, by the end of 2015, mandatory requirements for telecommunication equipment used in or connected to public networks would be limited to those requirements of technical regulations adopted in accordance with the relevant EurAsEC and CU Agreements on technical regulation. However, where duly justified, mandatory requirements in order to ensure integrity, stability, and security of operation of the national communications network could be maintained. The Working Party took note of these commitments.

739. In response to a question from Members, the representative of the Russian Federation confirmed that, until relevant technical regulations are adopted, sanitary and phytosanitary regulations would be applied in accordance with the provisions of Federal Law No. 99-FZ of 15 July 2000 "On Quarantine of Plants" (as last amended on 28 December 2010) and Law of the Russian Federation No. 4979-1 of 14 May 1993 "On Veterinary Practices" (as last amended on 28 December 2010) and, to the extent that these laws and matters regulated by these laws were covered by the WTO TBT Agreement, these laws, regulations, and any measures taken pursuant to them would be applied only to the extent that they complied with that Agreement. Similarly, until the adoption of technical regulations with respect to nuclear and radiological safety, current nuclear and radiological safety technical regulations would be applied in accordance with Federal Law No. 170-FZ of 21 November 1995 (as last amended on 27 December 2009) "On the use of Atomic Energy" and Federal Law No. 3-FZ of 9 January 1996 "On Radiation Safety of the Population" (as last amended on 23 July 2008) and, to the extent that matters regulated by these laws were covered by the WTO TBT Agreement, these laws, regulations, and any measures taken pursuant to them would be applied only to the extent that they complied with that Agreement, without prejudice to the obligations of the Russian Federation under the International Atomic Energy Agency (IAEA) and other international agreements in the nuclear sphere. The Working Party took note of these commitments.

740. Concerning safety and security requirements for civil aircraft, the representative of the Russian Federation stated that the Russian Federation was a Party to the CIS Intergovernmental Agreement on Civil Aviation and use of Airspace. In accordance with Government Resolution No. 367 of 23 April 1994, "On Improvement of the Certification System and of the Order of Accident Investigation in Civil Aviation of the Russian Federation", the Russian Federation delegated its certification authority concerning the airworthiness of civil aircraft to the Interstate Aviation Committee (IAC) that operates under the auspices of that Agreement. The IAC was authorised to act as the Federal Executive body of the Russian Federation for this purpose, and inter alia, to certify types of aircraft and components, and to accredit other organizations that conduct certifications. Pursuant to Government Resolution No. 316 of 7 April 1995, "On Amendments to Government Resolution No. 367 of 23 April 1994", the IAC was also authorised, on behalf of the Russian Federation, to conduct negotiations for reciprocal acceptance of certification of safety of types of aircraft for civil aviation. Other major activities of the IAC included the development and harmonisation of aviation rules and standards among the Parties to the Agreement; the certification of aeronautical repair facilities, aerodromes, and airways equipment; and the investigation of accidents involving civil aircraft.

741. The representative of the Russian Federation also commented that, in his view, the civil aviation certification requirements used by the IAC, including airworthiness requirements and certification procedures, were harmonized with corresponding norms and procedures of the United States of America (FAR - Federal Aviation Regulation) and the European Union (CS - Certification Specifications) and also corresponded to standards and recommended practices of Annex 8 to the Convention on International Civil Aviation. This, according to the representative of the Russian Federation, was confirmed by an audit conducted by the International Civil Aviation Organization (ICAO) carried out on the Russian Federation. He emphasised, that this harmonization had allowed for the conclusion of more than 30 inter-governmental and international agreements in the field of acceptance of airworthiness approvals of civil aircraft with all major manufacturers of civil aircraft.

742. Some Members of the Working Party recalled that civil aircraft certification requirements were a type of "technical regulation", as defined in the WTO TBT Agreement, and that the procedures for ensuring conformity with these requirements were "conformity assessment procedures" as defined in the WTO TBT Agreement. Members of the Working Party stated that they expected the Russian Federation to ensure compliance with the WTO TBT Agreement with respect to the preparation, adoption, and application of technical regulations and conformity assessment procedures for civil aircraft.

743. Some Members also noted their view that in some ongoing cases, the process of civil aircraft certification carried out by the IAC had lacked transparency and predictability, which raised concerns for those aircraft producers of those Members seeking aircraft certification in the Russian Federation. These Members considered that the Russian Federation should ensure that all civil aircraft certification and conformity assessment procedures were carried out in an expeditious, non-discriminatory, transparent, fair and objective manner, based on technical criteria only, in order to ensure that its certification and conformity assessment procedures did not operate as an unnecessary barrier to trade.

744. The representative of the Russian Federation confirmed that upon accession to the WTO, the civil aircraft certification requirements and conformity assessment procedures applied in the Russian Federation would comply with all relevant provisions of the WTO TBT Agreement. In particular, he confirmed that these civil aircraft requirements would be prepared, adopted, and applied in a non-discriminatory manner and would not be more trade restrictive than necessary. The representative of the Russian Federation further confirmed, that the Russian Federation would ensure that upon its accession to the WTO, the procedures for assessing conformity with these certification requirements, as carried out by the Russian Federation and the IAC, were applied equally to all like aircraft regardless of origin, and were carried out expeditiously and in a transparent manner. The representative of the Russian Federation further confirmed that any fees for the certification procedures would be imposed equitably for assessing the conformity of products of Russian or foreign origin in accordance with the provisions of Article 5.2.5 of the WTO TBT Agreement. The Working Party took note of these commitments.

745. The representative of the Russian Federation confirmed that all technical requirements applied to goods on the territory of the Russian Federation, including those applied as technical regulations as provided for in Federal Law No. 184-FZ of 27 December 2002 "On Technical Regulation" (as last amended on 28 September 2010) and other domestic legislation and the relevant EurAsEC and CU Agreements and other EurAsEC and CU Acts, to the extent that they corresponded to the definition of a "technical regulation" under the WTO TBT Agreement, would comply with the principles of the WTO TBT Agreement, relating in particular to transparency, predictability, and avoiding the creation of unnecessary obstacles to trade. The Working Party took note of these commitments.

(iii) Voluntary National and International Standards

746. Article 13 of Federal Law No. 184-FZ envisaged the following types of voluntary standards within the meaning of the WTO TBT Agreement to be used in the Russian Federation:

- national standards;

- rules, norms and recommendations in the sphere of standardization;

- classifications applied in accordance with the established procedure, all-Russian classifiers of technical-and-economic and social information;

- standards adopted by organizations (standards of enterprises, scientific, technical, engineering institutions and other societies),

- sets of rules, (voluntary documents, elaborated and approved by the Federal Executive bodies regarded as related to the standardization area);

- international standards, regional standards, regional sets of rules, standards of foreign states and sets of rules of foreign states registered with the Federal Information Fund of Technical Regulations and Standards; and

- duly certified Russian translations of international standards, regional standards, regional sets of rules, standards of foreign states and sets of rules of foreign states accepted for account by Rosstandart.

Sub-national standards were not envisaged under the Federal Law.

747. The representative of the Russian Federation stated that standards, guides, and recommendations developed according to the principles set-out in the Decision of the WTO Committee on Principles for the Development of International Standards, Guides and Recommendations with Relation to Articles 2, 5 and Annex 3 (G/TBT/1/Rev.8, Section IX of 23 May 2002) of the WTO Agreement on Technical Barriers to Trade, were regarded by the Russian Federation as international standards that could be used for the development of national standards. Chapter 3 of Federal Law No. 184-FZ also provided the basis for the implementation of the rules of the Code of Good Practice for the Preparation, Adoption, and Application of Standards (Annex 3 of the WTO TBT Agreement). He recalled that, since 1997, authorities of the Russian Federation were involved in the annual development and implementation of new standards. The level of harmonization of national standards in force with international standards was currently about 47 per cent.

748. He further informed Members of the Working Party that Government Resolution No. 266-r of 28 February 2006 "On the Approval of the Concept of Development of a National Standardization System in the Russian Federation" had promoted the progressive harmonization of national with international standards and encouraged due application of international standards. It also encouraged the State authorities to co-operate with the business community in drafting new national standards, aiming at the development of international trade relations and elimination of barriers to trade. All of these activities would continue under the framework established for standardization, technical regulation, and conformity assessment by CU and EurAsEC Agreements and other EurAsEC and CU Acts.

749. Some Members of the Working Party emphasized the importance of applying international standards and harmonizing national standards with international standards. They recalled efforts made by the Russian Federation under Federal Law No. 184-FZ to bring its regime on standards, technical regulations, and conformity assessment procedures into conformity with WTO provisions. They sought assurances that under the new regime based on EurAsEC and CU Agreements and other legal acts compliance with national standards would be voluntary and requested that the Russian Federation complete the process of harmonization with international standards as quickly as possible. In the event that the national standards of the Russian Federation differed from international standards, these Members sought confirmation that any national standards would be prepared, adopted and applied in accordance with the Code of Good Practice set-out in Annex 3 of the WTO TBT Agreement and any current national standards that were not consistent with the criteria set-out in the Code would be replaced.

750. In response to questions from a Member, the representative of the Russian Federation reiterated that Federal Law No. 184-FZ had established the main principles of the Russian system of standardization and technical regulation with its implementation in 2003, and these principles, in his view, had complied with the provisions of the WTO TBT Agreement. According to Article 12 of the Law, standards were applied voluntarily. Both Federal Law No. 184-FZ and the CU Agreement on Uniform Technical Regulation Principles established the following principles for the development and harmonization of standards:

- voluntary application of documents (standards) in the sphere of standardization;

- elaboration of standards with maximum account of interested parties' interests;

- application of an international standard as the basis for elaboration of a national standard, except when such standards were irrelevant to the purposes of demonstrating compliance with technical regulations, including due to the effects of climatic and geographic factors or technology problems;

- inadmissibility of creating obstacles to the manufacture and circulation of products, performance of works and rendering of services to a greater degree than it was minimum needed for the attainment of the goals specified in Article 11 of Federal Law No. 184-FZ;

- inadmissibility of the establishment of standards conflicting with established technical regulations; and

- provision of conditions for unified application of standards.

751. In response to a question from a Member about the procedure for elaboration and approval of national standards, the representative of the Russian Federation stated that the rules of elaboration and approval of voluntary standards were set-out in Article 16 of Federal Law No. 184-FZ. The national body for standardization (Rosstandart) was required to elaborate and approve the programme for the elaboration of national standards and ensure public availability of this programme. Any person (including foreigners) could act as the developer of a national standard. The developer must submit the notification of the elaboration of a national standard to the national body for standardization, which must then publish it in the public information system in digital electronic form and in the publication of the Federal Executive body for technical regulation. The notification must contain information about provisions in the draft national standard that differed from the provisions of the respective international standards. The developer of a national standard must provide interested persons access to the draft, including providing a copy of the draft national standard to an interested person on request at charges that did not exceed the cost of its manufacture. The developer must finalise the draft national standard taking account of any comments by interested persons obtained in written form, hold public consultation on the draft national standard, and compile a list of any comments received, with a brief outline of their content and of the results of the consultation and, present this list to the national body for standardization and the technical committees for standardization. The time limit for public consultation must not be less than two months, at the end of which the national body for standardization would publish a notice that the period for public consultation had ended. Interested persons must be provided access to the final draft national standard and to the list of comments.