Customs. Major Russian Legislation Changes For 2016 - Export Controls & Trade & Investment Sanctions

We would like to present the overview of the most important legislation changes in customs for 2016.

Supreme Court Plenum Resolution on applying customs legislation

On May 12, 2016 the Plenum of the Russian Federation Supreme Court approved Resolution No. 18 on Certain Issues of Application of Customs Legislation by the Courts of May 12, 2016 (the "Resolution"), which had a noticeable impact on the further development of court practice in disputes with the customs authorities.

The most significant provisions touched on matters of customs value, goods classification, and refund of excess customs duties paid:

The customs authority's discovery of evidence that a declared customs value is not true in and of itself cannot serve as a basis to adjust the customs value of the goods.
A person who imports a product at a price that differs considerably from comparable prices of identical/homogenous products should take care to gather evidence supporting the lower price in advance.
When checking the arguments of the parties to a dispute over whether a classification is correct the courts may take into consideration the recommendations and clarifications of the World Customs Organization which Russia has not declared that it will not apply.
Missing the one-year period for requesting a refund of customs payments from the customs authority in cases unrelated to excess payment to the budget (for example, when preferences are reinstated) does not make it impossible to file a claim with the court for refund of those amounts from the budget, if at the same time the general three-year statute of limitations has not expired.

Although the provisions of the Supreme Court Plenum Resolution should essentially provide clarifications on matters of court practice arising from differing application of the law, in fact this is transformed into the creation of "norms" which the courts follow in considering cases and which, accordingly, the customs authority and a foreign trade participant should take into account. Such "norms" include the following:

When considering disputes over the validity of adjusting a customs value the courts should not accept new evidence/documents from the declarant or customs authority if the parties had the opportunity to disclose them at the stage of additional verification of the customs value but did not take advantage of that opportunity.

Therefore, the court will not consider documents and information that the declarant did not submit earlier at the customs authorities' request in an additional verification of customs value.

When filing a request for refund of excess customs duties or taxes paid, the declarant must first send the customs authority a request to make changes to the information stated in the goods declarations.

However, the court does not make the amendments (in other words, a favorable customs authority decision on the request) a condition for refunding customs payments, but, if the declarant has not initiated amendments to the goods declarations, the court will find the customs authority's refusal to refund excess customs duties and taxes paid valid, even though the parties did not disagree on the facts of the case (the grounds for refund).

Deferred customs valuation

On November 1, 2016, the Collegium of the Eurasian Economic Commission introduced substantial changes to the rules for applying the procedure for deferred customs valuation of goods (Decision of the Eurasian Economic Commission Collegium No. 133 dated November 1, 2016). The EEC Collegium decided to expand the list of cases in which that procedure can be applied.

As of December 2, 2016, participants in foreign economic activity will be able to apply the procedure not only when declaring the value of exchange goods but also when determining the amounts of license fees, and when declaring the customs value of goods whose price depends on their subsequent sale.

In the procedure for deferred customs valuation, the customs value is declared based on available documents or using forecast (planned) figures known to the declarant at the time of customs clearance. After the goods are released, the customs value must be adjusted based on documented and actually incurred expenses or received income. The maximum time period for submitting the updated information is 15 months from the registration of the customs declaration.

If the updated customs value is higher than the preliminary value, the additional customs payments can be paid without penalty. In the opposite situation, the excess customs payment will be refunded upon the written request of the declarant.

The procedure for deferred customs valuation can be used when placing goods under the customs procedure of release for domestic consumption and when claiming the first method of customs valuation.

Thus, the existing mechanism for amending a customs declaration after the goods have been released and the procedure for deferred customs valuation will make it possible to solve a problem that has long vexed businesses: the inclusion of license fees in the customs value of imported goods.

Recommendation of the Eurasian Economic Commission about including royalties in customs value

In order to elaborate common approaches to resolving the issue of including royalties and other similar payments for use of intellectual property in the customs value of goods imported to the EAEU customs territory, the Collegium of the Eurasian Economic Commission approved Recommendation No. 20 on the Regulation on Adding Royalties and Other Similar Payments for Use of Intellectual Property to the Price Actually Paid or Payable for Imported Goods of November 15, 2016 (the EEC Recommendation).

The elaboration of this Recommendation is primarily connected with the complexity of the subject and the differing practice of applying the laws of including royalties in the customs value of goods in EAEU countries, and the need to formulate a common approach.

According to the provisions of the EEC Recommendation, the following issues should be analyzed when deciding whether to include royalties on imported goods:

Whether the imported goods contain intellectual property and/or were manufactured using intellectual property to which the rights are assigned under a license agreement.
Why royalties are paid and precisely what the purchaser (licensee) receives in exchange for paying them, and the issue of how royalties are calculated is not a key one.
What rights to use the intellectual property are granted to the licensee in accordance with the license agreement and how the granted rights are used by the licensee.
Whether payment of royalties is a condition for selling assessed (imported) goods, where the main criterion is that the customer (licensee) is unable to acquire the assessed (imported) goods without paying royalties.

When deciding whether to include royalties in imported goods, it is also necessary to analyze together the terms and conditions of the license agreement, the foreign trade transaction and other documents related to the sale of goods and payment of royalties.

In addition, the EEC Recommendation contains a description of individual examples of when royalties should be included in the customs value and when royalties do not relate to imported goods and should not be included in the customs value.

Development of the practice of challenging import customs duty rates as contrary to Russia's WTO commitments

Russia has been a member of the World Trade Organization (WTO) since August 22, 2012. As one of the conditions for its accession to the WTO Russia undertook a number of commitments that are defined in the December 16, 2011 Protocol on the Accession of the Russian Federation to the Marrakesh Agreement Establishing the World Trade Organization dated April 15, 1994 (the Protocol).

According to the Protocol, related customs duty rates are set for most of the EAEU Foreign Economic Activity Commodity Classification codes, which means that Russia agrees not to raise them above a preagreed level.

The customs duty rates set in the Unified Customs Tariff of the Customs Union (UCT CU) and exceeding the agreed level are to be gradually (annually) reduced over a transitional period according to a specified schedule.

Some of the commitments undertaken as a condition for WTO accession have not been fully met in practice. For example, during the transitional period the Unified Customs Tariff could be set as a combined customs duty rate contravening the Protocol, which provides, in turn, for the use of only its ad valorem part (in a percentage of customs value) and the use of a specific rate (depending on the physical features of the product: volume, weight, quantity, etc.) has led to foreign trade participants paying excess customs duties and taxes in the declaration process.

2016 had a major impact on forming uniform court practice with regard to challenging customs duty rates used at the time of declaration if they are inconsistent with the WTO commitments. The Supreme Court rulings handed down in 2016 "unanimously" confirmed that the customs authorities had violated international treaties of Russia and provisions of Customs Union customs legislation (RF Supreme Court Ruling No. 307-KG16-7272 of September 14, 2016 in case No. А56-11396/2015, RF Supreme Court Ruling No. 307-KG16-5127 of July 28, 2016 in case No. А56-74262/2014, RF Supreme Court Ruling No. 307-KG16-5897 of May 31, 2016 in case No. А56-68187/2014).

Changes to the RF Administrative Offenses Code improving provisions on administrative sanctions in customs

In accordance with Federal Law No. 207-FZ of June 23, 2016, amendments were made to the RF Administrative Offenses Code to improve provisions on administrative sanctions in customs.

The most significant and anticipated change was the addition to a note to Article 16.2 of the RF Administrative Offenses Code of a provision releasing the declarant and/or customs representative from administrative sanctions under part 1 for failing to declare goods, if all of the following criteria are met:

Voluntary communication to the customs authority that goods were not declared and submission of the relevant documents.
Prior to the date the request is recorded, the customs authority has not discovered the administrative offense involving the goods mentioned in the communication.
The customs authority has not notified that it would do customs control after the goods were released, or has not started to do the customs control without notification, if such notification is not required.
The declarant and customs representative do not have arrears for payment of customs duties, taxes or penalties.

The change was particularly important as it makes it possible to eliminate the risk of administrative sanctions being imposed on companies that discover after release that goods have been entered under the wrong heading or that they have excess goods.

In addition, a number of corrections were made to Chapter 16 of the RF Administrative Offenses Code:

Part 4 of Article 16.1 of the RF Administrative Offenses Code was eliminated due to the small number of administrative offense cases of that category.
Administrative offenses the sanctions for which are covered by parts 1 and 2 of Article 16.3 of the RF Administrative Offenses Code were combined into a single group of administrative offenses.
The conditions for imposing administrative sanctions were changed (for example Article 16.7 of the RF Administrative Offenses Code, part 2 of Article 16.20 of the RF Administrative Offenses Code)

Administrative sanctions were also reviewed to set punishment commensurate to the severity of the offenses: administrative punishments in the form of confiscation of goods were removed from some articles; punishments in the form of warnings were introduced; minimum administrative fines under some articles were decreased, while upper limits of fines under other articles were increased.

In accordance with Federal Law No. 510-FZ of December 28, 2016, amendments were also made to the RF Administrative Offenses Code setting administrative sanctions for failing to submit, or for late submission to the customs authority of a statistics form tracking the movement of goods. The new Article 19.7.13 of the RF Administrative Offenses Code applies to those who import and export goods to and from EAEU member states. Administrative liability for legal entities under this article is between RUB 20,000 and RUB 50,000, and the fine is increased for a repeat offense and ranges from RUB 50,000 to RUB 100,000.

EAEU Customs Code

On December 26, 2016 the presidents of Armenia, Kazakhstan, Kyrgyzstan and Russia signed the EAEU Customs Code in St. Petersburg. The international treaty was later sent to the Republic of Belarus for signing. However, the president of the Republic of Belarus has not yet signed the EAEU Customs Code, stating that some provisions of the document need to be further negotiated on the state level. So the projected effective date of the EAEU Customs Code is July 1, 2017.

The initial objective of adopting the EAEU Customs Code was to work on eliminating a large number of referenced provisions from the current Customs Union Customs Code to accomplish the basic task of simplifying the document's use. However, work on unifying the EAEU customs legislation dragged on for three years and, as a result, the EAEU Customs Code is not just an edition of the Customs Union Customs Code containing the minimum possible number of referenced clauses, but substantially differs from its predecessor at least in the following key areas that are enshrined in the EAEU Customs Code:

The priority of e-declaration
The possibility of completing customs transactions related to registering a goods declaration automatically
The possibility of filing a goods declaration without submitting the documents used to complete the declaration
Expediting the release of goods
Developing an advance notice mechanism
Improving the authorized economic operator mechanism

The international treaty surpasses its predecessor considerably in terms of how well its provisions have been worked out. This is the result of having substantially fine tuned certain provisions of the customs legislation, combining provisions previously contained in different agreements into a single document, and also thanks to the active participation of the business community in the process of drafting the EAEU Customs Code.

Technical regulation: ERA GLONASS, new technical regulation requirement

At the end of 2016 the Russian Ministry of Industry and Trade (Minpromtorg of Russia) gave clarifications on applying the provisions of ТР ТС 018/2011 with respect to the requirement to equip vehicles with ERA GLONASS modules (Minpromtorg of Russia Letter No. МА-64415/20 of October 11, 2016 and Minpromtorg of Russia Letter No. PG-20-8607 of December 9, 2016).

The clarifications were needed because as of January 1, 2017, according to Customs Union Commission Decision No. 877 on the Adoption of the Customs Union Regulation 'On the Safety of Wheeled Vehicles' of December 9, 2011 (ТР ТС 018/2011), all new car models put into circulation in the Eurasian Economic Union must be equipped with ERA GLONASS emergency response calling modules.

Minpromtorg of Russia clarified that, generally, car companies that intend to import a new model vehicle or manufacture and sell it in Russia must equip it with ERA GLONASS modules and pass Transport Vehicle Type Approval, including crash tests, in which the ERA GLONASS system is tested.

Vehicles previously released into circulation in the Russian Federation without emergency response calling devices can be equipped with such devices at the vehicle owners' initiative. However, a car must be equipped with an ERA GLONASS system as soon the car model changes generation, in other words, when essentially a new model will be manufactured or upon expiration of the vehicle type approval that is the basic document confirming the vehicle meets the technical regulation requirements. In addition, formally ТР ТС 018/2011 makes it possible to take advantage of a three-year grace period for equipping cars with ERA GLONASS.

However, already in early 2017 due to the vague wording of TP TC 018/2011 most automotive companies had to invest in equipping their vehicles with the system under the threat of car supplies to Russia being halted.

Increased customs value control

In February 2016 the Federal Customs Service issued Order No. 280 on Increasing the Efficacy of Customs Value Control when Applying the Risk Management System.

At first glance, the provisions of the order are aimed at ensuring the monitoring of results of customs transactions, controlling the quality of decisions taken on customs value, and at fulfilling targets for customs authorities' efficiency in controlling the customs value of goods. In practice, however, this document has turned a new page in the battle for true customs values. The order has essentially decided the fate of importers whose transaction price differs from prices contained in the customs authorities' databases.

For example, the standard set of documents is no longer sufficient to confirm the accuracy of a declared customs value and, as a consequence, the additional verification done by the customs authority has resulted in adjustment. So, 2016 brought quite a number of reasons for declarants to challenge decisions of the customs authorities both in the course of agency control and in court.

At present the order continues to affect the situation with confirming the customs value of imported goods, so particular attention should be paid to preparing all documents supporting the customs value in advance in order to submit them to the customs authority.

Agricultural machinery recycling fee

RF Government Resolution No. 81 on the Recycling Fee for Self-Propelled Vehicles and/or Trailers and on Amendments to Certain Acts of the Russian Federation Government of February 6, 2016 entered into force in mid-May 2016. The Resolution approved the Rules for Charging, Calculating, Paying and Recovering a Recycling Fee on Self-Propelled Vehicles and/or Trailers, Refunding and Offsetting Excess Fee Amounts Paid or Recovered, and the List of Agricultural Machinery for which the fee needs to be paid.

For example, for each self-propelled vehicle imported to Russia or manufactured or fabricated in Russia, with some exceptions, a recycling fee is paid to protect environmental safety, including to protect human health and the environment from the harmful impact of operating such machines, taking into account their technical characteristics and depreciation.

People and entities that import agricultural machinery to Russia are payers of the recycling fee.

The amount of the recycling fee for the category/type of self-propelled vehicle is equal to the product of the base rate and a coefficient provided for a specific item. The base rate for calculating the recycling fee amount for self-propelled vehicles and trailers is equal to RUB 150,000. The coefficient depends on a number of criteria: the year the agricultural machinery was manufactured (whether it is new or more than three years old), the power and weight of the vehicle. The minimum coefficient is 0.4 and the maximum coefficient is 238.1.

The Federal Customs Service charges the recycling fee. The customs authorities issue certificates for self-propelled vehicles and other types of machinery, and the customs authorities record information about payment of the recycling fee in certificates once the recycling fee has been paid to the federal budget.

Amendment of legislation regulating the import and use of GMOs and products containing GMOs

On July 1, 2017, a number of fundamental amendments to certain legislative acts of the Russian Federation come into force to improve state regulation of genetic engineering (Federal Law No. 358-FZ of July 3, 2016). The following are the most substantial amendments:

A mechanism will be created for strictly controlling and monitoring the release of genetically modified organisms (GMOs) into the environment and the impact of GMOs and GMO-based products on humans and the environment. The RF Ministry of Health, the RF Federal Healthcare Supervisory Service (Roszdravnadzor), the RF Federal Service for Protection of Consumer Rights (Rospotrebnadzor) and the RF Federal Veterinary and Phytosanitary Monitoring Service (Rosselkhoznadzor) will be appointed competent supervisory state authorities.
It is already prohibited to import to Russia and use GMO plant seeds for planting, other than planting such seeds to conduct expert reviews and scientific research.
Administrative sanctions will be introduced to genetic engineering. Now there are administrative sanctions only when product labeling does not state that a product contains GMOs. Starting July 1, 2017, the following offenses will be considered administrative offenses:
- Use of GMOs and/or products obtained using such GMOs or containing such GMOs that have not undergone state registration
- Use of an expired GMO registration or GMO product certificate
- Use of a GMO other than for its registered purposes
- Breaching the special conditions for using a GMO, e.g., when manufacturing a specific type of product
  The administrative fine for legal entities is between RUB 100,000 and RUB 500,000.
It is already prohibited to grow plants and raise animals that have been genetically modified using gene engineering methods and that contain genetic engineering material whose introduction cannot be the result of natural processes, other than growing and raising such plants and animals when conducting expert reviews and scientific research.

Thus, the system of genetic engineering monitoring and supervision will become much stricter. In practice this will make it necessary to register a GMO product that is permitted for import and a ban on importing GMO-containing seeds later used for planting and growing/raising plants and animals, and also a ban on growing/raising genetically engineered plants and animals.

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Russian Federation: Customs. Major Russian Legislation Changes For 2016