FEDERATION TO THE WORLD TRADE ORGANIZATION 28 страница

752. He further stated that the draft national standard together with the list of comments received on the draft must be presented by the developer to the technical committee for standardization which then organized examination of the draft. Taking account of the results of the examination, the technical committee for standardization was required to prepare a proposal, together with a statement of reasons, on approval or rejection of the draft national standard. This proposal must be sent together with the draft standard, the list of comments, and the results of the examination to the national body for standardization, which must then take a decision on adoption or rejection of the draft standard and publish the relevant notification in its official publication in digital electronic form within 30 days from the day of approval of the national standard. The procedure established for development and approval of national standards also was to be used to amend national standards.

753. He further explained that in the case of lack of national standards applicable to certain requirements of technical regulations or objects of technical regulation, sets of rules could be elaborated as a means of ensuring compliance with requirements of the technical regulations 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, as described in Articles 2 and 16 (10) of Federal Law No. 184-FZ. Sets of rules were documents of standardization that were applied on a voluntary basis in line with the aims and principles set-out by Federal Law No. 184-FZ. Sets of rules were rules that were approved by the Federal Executive bodies within the limits of their authority and did not differ from national standards by their character or result, but by their format. The representative of the Russian Federation considered that both national standards (issued after 1 July 2003) and sets of rules were standards, i.e., voluntary, as that term was defined by the WTO TBT Agreement.

754. Elaboration and approval of sets of rules would be carried out by the Federal Executive bodies within the limits of their authority. Draft sets of rules would be published in the public information system in digital electronic form at least two months prior to their approval. The procedure for the elaboration and approval of sets of rules was established by the Government of the Russian Federation according to the provisions of Article 16 of Federal Law No. 184-FZ related to the respective procedures set for the elaboration of national standards, in Government Resolution No. 858 of 19 November 2008 "On Order on Development and Adoption of Set of Rules".

755. In response to a question from one Member about different time-frames mentioned in paragraphs 752 and 799, the representative of the Russian Federation explained that those time-frames related to two different procedures. The time-frame of 30 days mentioned in paragraph 752 was relevant to the time period between adoption of a national standard and publication of the relevant public notice. Time-frames mentioned in paragraph 799 were relevant to the procedure of elaboration and adoption of technical rules (methods of measurement, etc.) if such rules were necessary for implementation of a technical regulation; the two time periods related to technical regulations together must be observed within the 180-day minimum time period between the adoption of a technical regulation and its entry into force.

756. The representative of the Russian Federation confirmed that the definition of "sets of rules" in Article 2 of the Law on Technical Regulation had been amended to make clear that sets of rules have the same goals and are subject to the same principles and procedures as were established for the adoption of WTO TBT Agreement compatible standards. Furthermore, Article 16.10 of the Law on Technical Regulation would be applied so that sets of rules were adopted through procedures that were at least as transparent as the procedures set-out in Article 16.3 through 16.6 of Federal Law No. 184-FZ of 27 December 2002 "On Technical Regulation" (as last amended on 28 September 2010) and that such sets of rules would be used as a voluntary means of demonstrating compliance with technical regulations. The Working Party took note of these commitments.

(iv) Disposition of Mandatory National Standards of the Russian Federation

757. The representative of the Russian Federation stated that Federal Law No. 184-FZ and the new framework for standards and technical regulation set-out in EurAsEC and CU Agreements and other EurAsEC and CU Acts were based on WTO provisions. According to Article 7 (2) of Federal Law No. 184-FZ, Article 2.2 of the EurAsEC Agreement on Common Technical Regulation Policy and Article 4 of the CU Agreement on Uniform Technical Regulation Principles, requirements for products and related processes of production, assembly, set-up, operation (use), storage, transportation, realization and utilisation, as well as rules of identification (labelling), forms, schemes and procedures of assessment (confirmation) of compliance, where they were to remain mandatory, must be contained in technical regulations bearing in mind the principle that requirements should not be more trade restrictive than to fulfil a legitimate objective. These technical regulations were applied directly throughout the territory of the Russian Federation and could be modified only by introducing amendments and supplements to the corresponding technical regulation, according to EurAsEC and CU Commission decisions. Any provision that related to the application of the relevant technical regulation and was not included in that technical regulation was not mandatory. Russian national standards containing mandatory requirements were to have been reviewed and replaced with technical regulations by 1 July 2010. While that deadline was no longer operational, Federal Law No. 184-FZ still provided that national standards applied prior to 1 July 2003 containing mandatory requirements would stay in force, but only to the extent that they did not contradict the principles set-out in the Law, and which complied with the principles of the WTO TBT Agreement. No additional national standards containing a mandatory requirement had been adopted in the Russian Federation after 1 July 2003, only technical regulations were developed and adopted according to Federal Law No. 184-FZ. The exceptions to this general rule were described in paragraphs 731 to 745. If any problems arose from the application of national standards with mandatory requirements, connected with the inconsistency of the national standard with the provisions of the Law, a procedure set-out in Article 46 of the Law for amending the national standard without waiting until it was replaced with a technical regulation consistent with the international obligations of the Russian Federation.

758. He also explained that Federal Law No. 184-FZ had required replacement of all national standards containing mandatory requirements with technical regulations prior to 1 July 2010. Because of technical, organizational and other difficulties this deadline had been eliminated, but all remaining national standards containing mandatory requirements would be replaced by EurAsEC and CU technical regulations as part of the CU technical regulation harmonization process, based on the work plan and timetable for adoption of priority technical regulations found in CU Commission Decision No. 492 and EurAsEC Interstate Council Decision No. 521.

759. One Member indicated that it would like to see a firm commitment to the completion of the process of converting the national standards of the Russian Federation with mandatory requirements into technical regulations from the date of accession. It noted that the WTO TBT Agreement covered three types of measures: standards which were voluntary and technical regulations and conformity assessment procedures that were linked to technical regulations which were mandatory. Furthermore, prior to commencing the process of WTO accession, the Russian Federation had developed national standards, some of which contained mandatory requirements. This Member further noted that both Federal Law No. 184-FZ and EurAsEC and CU Agreements and other EurAsEC and CU Acts on technical regulations foresaw the completion of the process of converting standards with mandatory requirements into technical regulations. This Member requested that the Russian Federation confirm a specific date for completing this process.

760. The representative of the Russian Federation explained that, pending their replacement by EurAsEC and CU technical regulations, national standards issued by the Federal Executive authorities prior to 1 July 2003, which contained mandatory requirements were in force only to the extent that they ensured: protection of human life or health, property of natural and legal persons, and State or municipal property; protection of the environment and of animal and plant life or health; prevention of deceptive practices and energy efficiency (all of which were set-out in Article 6.1 of Federal Law No. 184-FZ, the EurAsEC Agreement on Technical Regulation Policy Coordination and the CU Agreement on Technical Regulation Principles). Further, such national standards, were considered by his Government to be "technical regulations" as that term was defined in Annex 1 of the WTO TBT Agreement. In addition, 24 technical regulations had been established under the provisions of Federal Law No. 184-FZ.

761. The representative of the Russian Federation confirmed that any concerns of interested parties and Members regarding compatibility of such mandatory requirements with the WTO TBT Agreement would be duly and effectively addressed in the framework of mechanisms and procedures provided for in the legislation of the Russian Federation and in CU and EurAsEC technical regulations. He added that information about the opportunities offered by these procedures would be made available to interested parties and Members, inter alia, through the Enquiry Point on TBT. The representative of the Russian Federation also confirmed that imports of goods for which no mandatory requirements were in force would be allowed without being required to satisfy formalities related to establishing compliance with technical regulations. The Working Party took note of these commitments.

762. In response to a question from a Member inquiring whether amendments to mandatory requirements in CU and EurAsEC technical regulations would be reviewed vis-a-vis their consistency with the WTO TBT Agreement, the representative of the Russian Federation responded that the consistency of such amendments and draft technical regulations with the WTO TBT Agreement would be verified for their consistency with the WTO TBT Agreement, including through testing their consistency with the relevant provisions of CU and EurAsEC Agreements and Acts. Item 20 of CU Commission Decision No. 527 provided that procedures on amendments were the same as for the adoption of technical regulations and, in his view, were compliant with the provisions of the WTO TBT Agreement.

763. The representative of the Russian Federation explained that an applicant (Russian or foreign person) could request consideration of amendments to a mandatory requirement and/or rules for its application with the aim of bringing the mandatory requirement and/or rules for its application into compliance with CU and EurAsEC Agreements and Acts, in accordance with the procedures established by CU Commission Decision No. 527 and similar provisions of EurAsEC. Such a request also could be addressed to the government agency that had jurisdiction in a particular regulatory area. In such case, the agency would study the matter and present its opinion and, if relevant, a proposal on an amendment to the national body on standardization, i.e. Rosstandart. Finally, the representative of the Russian Federation explained that it was possible at any time to challenge in court any mandatory requirements within the scope of technical regulations established under Federal Law No. 184-FZ or CU and EurAsEC technical regulations if such requirements did not comply with the criteria set-out in the Law or in CU and EurAsEC Agreements.

764. The representative of the Russian Federation explained that an applicant could use an international or regional or foreign standard for purposes of confirmation of conformity. To this end, the applicant needed to submit to Rosstandart a translation into Russian of such standard. Rosstandart considered this standard within 45 days with the relevant technical committee in this area (see paragraph 5 of Article 44 of Federal Law No. 184-FZ), and provided a reasoned conclusion in terms of the possible application of the standard that the applicant submitted for purposes of confirmation of conformity. If the use of this standard was possible, it was included in the corresponding list of documents used for confirmation of conformity and to the Information Fund of Standards. Where required, the CU Commission included the foregoing standard in the list of standards which were in use for confirmation of conformity, as provided for in CU Commission Decision No. 527 of 28 January 2011, Regulation on Development, Adoption, Amendment and Cancellation of Technical Regulations of the Customs Union. He also stated that Federal Law No. 184-FZ provided for review of standards which were in use for purposes of confirmation of conformity at least once every five years (Article 16.5 of Federal Law No. 184-FZ).

765. The representative of the Russian Federation confirmed that all standards currently in force in the Russian Federation containing mandatory requirements would be applied in compliance with the WTO TBT Agreement from the date of accession. In case of their inconsistency with the provisions of the WTO TBT Agreement, such standards would be modified in accordance with the procedures set-out in CU Commission Decision No. 527 of 28 January 2011, Regulation on Development, Adoption, Amendment and Cancellation of Technical Regulations of the Customs Union and national legislation. He confirmed that the Russian Federation would fulfil all requirements of the WTO TBT Agreement, including those on notifications, as of the date of accession. The Working Party took note of this commitment.

(v) Transparency and Notification

766. In response to a question from a Member, the representative of the Russian Federation explained that all technical regulation proposals would be published in the public information system of the Russian Federation, the CU and the EurAsEC in digital form at least 60 days prior to their adoption. Neither Federal Law No. 184-FZ nor CU and EurAsEC Agreements and Acts on standardization or technical regulation defined or limited the number or character of interested persons who could submit commentary or suggestions to drafts of technical regulation. CU Commission Decision No. 527 explicitly provided for participation of all interested persons. Draft amendments would be revised after taking into account the comments of interested persons. He also noted that the relevant international agreements and other legal acts did not provide for any restrictions for foreign persons to participate in the public review of draft technical regulations as interested persons. In accordance with CU Commission Decision No. 527, interested persons including persons from third countries could submit their proposals and remarks on drafts of CU and EurAsEC technical regulations to the relevant national authorities as determined by the Government, to the CU Party-developer of the technical regulation, to the CU Commission or to the Integration Committee of the EurAsEC (in the event of the technical regulation of EurAsEC), as relevant. Proposals would be considered and upon the review there would be prepared a summary of comments on the draft of the technical regulation and a decision on each of them, including reasons for such decisions.

767. The Federal Executive body authorised by the Government to be responsible for the draft technical regulation would send the list of comments received from all these sources in written form to the commission of experts which was elaborating the amendments, at least 30 days prior to adoption of the amendments. The commission of experts would consist of the representatives of the respective Federal Executive body, other interested Federal Executive bodies, research institutions, self-regulating organizations, public associations of entrepreneurs and consumers. The decision on the amendment of the draft technical regulation in conformity with the comments and/or referral of the draft technical regulation to CU or EurAsEC bodies for further review, harmonization and approval or rejection would be made by the Federal body responsible for development of the technical regulation on the basis of documents presented by the commission of experts. The WTO TBT Committee would be notified when draft technical regulations were circulated for comment domestically and when amendments to national standards were proposed. He assured Members of the Working Party that this procedure would operate with the aim of securing effective and timely consideration of proposals on draft technical regulation proposals and amendments to draft technical regulation proposals.

768. In response to a Member inquiring whether the comment period would be initiated only when notified, the representative of the Russian Federation stated that this 60 day period was not a specific "comment period" but a minimum allowed time-frame between publication of the draft and the publication of notification of the end of the comment period. The commission of experts initiated their review after this period had concluded. However, the CU Commission considered initial comments collected by the Federal Executive as well as any other comments received during examination of the draft. He explained that an additional period of comment was provided for in the process of development and/or adoption of CU and EurAsEC technical regulations, as provided for in CU Commission Decision No. 527 and in other CU and EurAsEC Acts.

769. In response to some Members' questions concerning matters of transparency in the area of technical regulation, the representative of the Russian Federation informed Members of the Working Party that the Federal Data Bank of Technical Regulations and Standards had been established to perform all information procedures, including WTO notifications. It also contained information on all remaining national technical regulations and national standards containing mandatory requirements that were in force. He also informed Members that a Single Enquiry Point, as contemplated under the WTO TBT Agreement and the WTO SPS Agreement, was operative within this structure, providing access to Russian regulations, standards, rules, and conformity assessment procedures, as well as drafts of respective documents. Rosstandart was the enquiry point and its website and e-mail address were the following: http://www.gostinfo.ru; and [email protected]. When national technical regulations were fully replaced with technical regulations established in accordance with relevant CU and EurAsEC Agreements and Acts, a new Single Enquiry Point would be established for the CU and EurAsEC.

770. Since December 2003, "Newsletter (Vestnik) of Technical Regulation" was published by Gosstandart (afterwards by Rosstandart). This was an official publication, which contained all domestic notifications on the development and outcome of public consultations on technical regulations, conformity assessment procedures, and standards, reports of expert commissions on technical regulations, draft legislative acts, and other regulatory legal documents in the area of technical regulation. The CU Commission website, www.tsouz.ru, was the point of publication for such documents related to the development, adoption, and application of CU technical regulations. For EurAsEC technical regulations, the website was www.evrazes.com/en.

771. Some Members expressed a concern that under the CU Commission Decision No. 620, as described in paragraph 702, foreign manufacturers not located in the territory of the CU, in contrast to manufacturers located within the territory of the CU, did not have the option to use declarations of conformity based on the CU common form. To these Members, this constituted discrimination in breach of the TBT Agreement. These Members sought a commitment that the Russian Federation, by the date of accession, would eliminate this discriminatory treatment.

772. In response, the representative of the Russian Federation confirmed that in order to comply with the WTO TBT Agreement, and in particular Article 2.1 thereof, the said discriminatory treatment would be eliminated by the date of accession of the Russian Federation to the WTO through the amendment of CU Commission Decision No. 620 of 7 April 2011 "On the Unified List's Update with Regard to Products Subjected to Mandatory Conformity Assessment (Confirmation) within the Framework of the CU with Issuance of Single Documents", approved by CU Commission Decision No. 319 of 18 June 2010 to ensure that foreign manufacturers not located within the territory of the CU would be able to demonstrate the conformity of the products imported into the territory of the CU through use of declarations of conformity using the CU common form. The Working Party took note of this commitment.

(vi) Conformity Assessment Procedures including the Accreditation of Conformity Assessment Bodies

773. The representative of the Russian Federation explained that, under Federal Law No. 184-FZ, the cost of mandatory conformity assessment would be paid by the applicant. Furthermore, the cost of obligatory confirmation of compliance was to be determined regardless of the country and/or place of their origin or of the persons acting as applicants. He confirmed that the cost incurred by a conformity assessment body formed the basis for determining the cost to the applicant. The elements that would typically be considered by a conformity assessment body in the territory of the Russian Federation in determining fees included the costs of labour, any necessary materials or equipment, and tests, as well as other usual costs and profits typical to commercial practices in this sphere. The representative of the Russian Federation confirmed that, under Article 19 (1) of Federal Law No. 184-FZ of 27 December 2002 "On Technical Regulation" (as last amended on 28 September 2010) (hereafter: Law No. 184-FZ), the procedures for the obligatory confirmation of compliance must be organized and applied in accordance with the principle of minimizing time duration and cost to the applicant. The elements and procedures for determining cost to the applicant were indicated by guidelines established by the national standardization body and, pursuant to Article 23.4 of Law No. 184, applied equally to imported and domestic products. The applicant had the right to apply to court to seek compliance with these provisions, including cases when Federal or local government or non-governmental measures or those of the CU or EurAsEC were concerned. He also noted that the provisions of Law No. 184-FZ as a whole reflected the principle of uniform application of the Technical Regulation system and of the rules of conformity assessment, regardless of the country of origin of the products or the nationality of conformity assessment bodies. Article 23 (4) of Law No. 184-FZ specifically provided that the cost to be paid for work on obligatory conformity assessment of goods would be established regardless of the country and/or place of their origin, or the origin of the persons applying for conformity assessment. The Working Party took note of these commitments.

774. In response to a question of a Member, whether conformity assessment bodies could generate profit from the fees they charge or whether they were limited to cost recovery only, the representative of the Russian Federation replied that conformity assessment bodies were commercial organizations and may generate profit.

775. The representative of the Russian Federation explained that the issues of liability for releasing to the market, products which did not meet the requirements of technical regulations (including the judicial procedure of coercive retraction of products; liability of certification bodies, accredited testing laboratories and their employees) were described in Articles 36 to 42 of Federal Law No. 184-FZ.

776. The representative of the Russian Federation explained that recognition of conformity assessment certificates issued in foreign countries was carried out in line with interstate agreements and international certification systems to which the Russian Federation had acceded and, in such cases, did not require the conclusion of a mutual recognition or other agreement. Those interstate agreements and international certification systems to which the Russian Federation had acceded and for which the Russian Federation recognised the results of conformity confirmation procedures, included the Geneva Agreement of 1955 on Mechanical Vehicles, Brussels Convention on Reciprocal Recognition of Proof Marks of Handguns and Cartridges, IEC Quality Assessment System for Electronic Components (IECQ), IEC System for Conformity Testing and Certification of Electrical Equipment (IECEE), and IEC Scheme for Certification to Standards for Electrical Equipment for Explosive Atmospheres (IECEx). For importation and transit of goods regulated by the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES), a permit issued by a CITES agency in the exporting country was accepted. Recognition of results of conformity assessment procedures was done through accreditation of foreign certification bodies within the national mandatory certification system based on Mutual Recognition Agreements (MRAs) and would be the responsibility of the single national accreditation body once this was established. Its first task would be to secure membership in ILAC. Membership would provide the basis for accepting the results of conformity assessment procedures of conformity assessment bodies accredited by other ILAC members. But even before joining ILAC, the Russian Federation was ready to start preparation of bilateral and multilateral arrangements with interested Members, including recognition of results of activity of certification bodies. The procedures for recognising foreign conformity assessment documents (i.e., documents for the confirmation of compliance and reports of examination (tests) and measurements of products) were also determined on the basis of relevant multilateral and bilateral agreements on mutual recognition of certificates and schemes of conformity. CU Commission Decision No. 621 of 7 April 2011 established such schemes, including scheme No. 9 which addressed the recognition of certificates of conformity of third-country conformity assessment bodies. In other cases, due to differences in requirements for the products and procedures of accreditation of certification bodies adopted in the Russian Federation compared to some other countries, foreign certificates were not recognised.

777. A Member requested information on the agreements or arrangements (multilateral, plurilateral or bilateral) that the Russian authorities or conformity assessment bodies were party to, that would facilitate the mutual recognition of certificates of conformity. In response, the representative of the Russian Federation noted that the list of multilateral and bilateral agreements to which the Russian Federation was a party, including those containing provisions on mutual recognition, was available at www.gost.ru, as was the list of acceptable conformity assessment bodies and the Unified Register of conformity assessment bodies accepted by the CU Parties.

778. A Member asked whether these lists would be made publicly available in any other languages. In response, the representative of the Russian Federation stated that upon accession, the Russian Federation would officially notify these agreements in accordance with the provisions of the WTO TBT Agreement on notification, in one of the WTO official languages.

779. Some Members of the Working Party requested clarification of the basis for acceptance of the results of conformity assessment procedures done in WTO Members, in particular on how the Russian Federation would implement Article 6.1 of the WTO TBT Agreement. They also sought confirmation that interstate agreements, international treaties, and international certification systems to which the Russian Federation had acceded included the WTO Agreement. Members noted that the Russian Federation ratified the EurAsEC Agreement on Technical Regulation Policy Coordination, Article 9.2 of which stated that "the documents of conformity assessment (confirmation) received outside the common customs area, including documents regarding test results and products imported for distribution within the common customs area, shall be recognised, only in case all States of the Parties have acceded to the relevant international treaties". They also noted that the Russian Federation had confirmed that, in practice, this meant that the documents of conformity assessment received outside the common customs area would be recognised only in cases where a mutual recognition agreement was applied between CU Parties and the relevant foreign state. They asked the Russian Federation to explain how the provisions of Article 6 of the WTO TBT Agreement, i.e., that WTO Members shall ensure, whenever possible, that the results of conformity assessment procedures in other WTO Members were accepted, even when those procedures differed from their own, provided they were satisfied that those procedures offered an assurance of conformity with applicable technical regulations or standards equivalent to their own procedures, could be implemented in light of the EurAsEC Agreement on Technical Regulation Policy Coordination.