CUSTOMS CLEARANCE AND CUSTOMS CONTROL OF DUAL USE GOODS (GUAM countries) Handbook 2021-2023
📄 სრული ტექსტი
General introduction.
REPUBLIC OF MOLDOVA.
Section 1. A brief overview of international and national legislation.
1.1. A brief overview of international legislation.
1.2. A brief of national legislation.
Section 2. Structure of the Customs Service of the Republic of Moldova and functions of its structural divisions
Section 3. Basic customs procedures
3.1. Customs Procedures.
3.2. Special features of customs clearance of goods and technologies included in national control lists.
3.3. Customs Formalities.
3.4. Customs control of goods.
Section 4. Classifier of customs documents.
4.1. Types of Customs Declaration.
4.2. Transport Documents.
4.3. Other documents confirming the right of Possession, Use and/or Disposal of Goods.
Section 5. Transportation of strategic and dangerous goods.
Section 6. Risk management system in relation to goods subject to customs clearance.
Section 7. Interaction of the Customs Service with the authorities, agencies and stakeholders.
7.1. Inter-Agency Cooperation.
7.2. Relationship of the customs authority with the stakeholders.
Section 8. Liability for violation of customs rules and procedures.
Section 9 National commodity nomenclature of foreign economic affairs.
9.1. The essence of the National commodity nomenclature of foreign economic affairs.
9.2. Rules for determining commodity codes.
9.3. Preliminary tariff decisions.
Section 10 Control lists.
10.1. Structure of the national control lists.
10.2. How to find the item in the control list.
10.3. How to use the correlation table.
10.4. Use of open sources and special programs.
Section 11 Case studies.
11.1. Permitted goods that were introduced/take out based on the permissive acts.
11.2. Goods that had attempts to be smuggled.
ANNEXES.
UKRAINE..
Section 1 A brief overview of international and national legislation.
1.1. General
1.1.1 United Nations Security Council Resolution 1540.
1.1.2. Export control regimes.
1.2. A brief overview of national legislation.
Section 2 Structure of the Customs Service and functions of its structural divisions.
2.1. Stages of development and establishment of customs in the independent Ukraine.
2.2. Peculiarities, objectives and tasks of customs in Ukraine.
2.3. Customs economic zones.
2.4. Controlled delivery.
Section 3. Basic customs procedures
3.1. Customs regimes.
3.2. Customs formalities.
3.3. Special features of customs clearance of controlled goods.
Section 4. Classifier of customs documents.
4.1. Types of customs declaration.
4.2. Transport documents.
4.3. Other documents confirming the right of ownership / possession or use / release of goods.
Section 5. Transportation of strategic goods, as well as transportation of dangerous goods.
5.1. Permits and authorizations provided by international and bilateral agreements.
5.2. General principles of international road transport of goods.
5.3. Certain dual-use items as dangerous goods.
5.4. Regulations for the carriage of dangerous goods through the customs territory.
Section 6. Risk management system in relation to goods subject to customs clearance.
6.1. Brief overview of risk management system.
6.2. Identification and assessment of risks.
6.3. Risk profiles.
6.4. Risk owner and risk management.
6.5. Post audit activities (fulfillment by customs officials of the formalities determined by the results of the RMS)
6.6. Container control program (CCP).
Section 7. Interaction of the Customs Service with the authorities, agencies and stakeholders.
7.1. Inter-Agency Cooperation.
7.2. Relationship of the customs authority with the stakeholders.
Section 8. Liability for violation of customs rules and procedures.
Section 9. National commodity nomenclature of foreign economic affairs
9.1. The essence of the National commodity nomenclature of foreign economic affairs.
9.2. Rules for determining commodity codes.
9.3. Preliminary decisions.
Section 10. Control lists.
10.1. Structure of the control lists.
10.2. Search for products in the control lists.
10.3. How to use the correlation table.
10.4. Use of open sources and special programs.
10.4.1. Control lists.
10.4.2. Sanction policy.
Section 11. Case studies.
11.1. Practical examples of identification of dual-use goods.
11.2. Explanations for customs front-line officers about the initial identification of dual-use goods.
ANNEXES.
Annex 1 National peculiarities of the export control system of dual-use goods in Ukraine.
Annex 2 Useful links and used sources.
REPUBLIC OF GEORGIA.
Section 1 A brief overview of international and national legislation.
1.1 Brief overview of the international and national legal framework.
International Agreements and Treaties.
United Nations Resolutions and Sanctions.
Non-Proliferation Regimes.
1.2. Legal framework of Georgia.
Section 2. Role of Customs Department in Export Control System as Licensing Authority.
The functions and structure of Customs Department
Unified electronic system..
Permitting rules.
Section 3. Basic Customs Procedures
3.1. Customs procedures.
3.2. Peculiarities of customs clearance of goods and technologies included in national control lists.
3.3. Customs formalities.
Section 4. Customs Documentation Classifier.
Section 5. Transportation of strategic goods, as well as transportation of dangerous goods.
5.1. General principles of international carriage of goods by road and permits and authorizations provided by international and bilateral agreements.
ECMT.
BSEC.
TRACECA.
5.2. Customs procedures related to international carriage of goods by road.
5.3. Strategic Goods as Dangerous Goods (in terms of transportation).
Section 6. Risk Management System for Goods Subject to Customs Clearance.
Risk management system..
Risk Identification.
The Risk Owner.
Post-Audit control of goods (post-audit).
Upon post audit control of the goods:
Container Control Program (CCP).
Section 7. Relations of the Customs Service with State Agencies, Bodies and Stakeholders
7.1. Interagency Cooperation.
7.2. Relations between the customs authority and stakeholders.
Section 8. Responsibility for violation of Customs rules and Procedures.
Violation of customs rules and Liabilities.
Section 9. National commodity nomenclature of foreign economic affairs
9.1. The essence of the national commodity nomenclature of foreign trade.
9.2. Classification rules.
9.3. Preliminary decisions.
Section 10. The Control lists.
10.1. Structure of the dual-use items list.
10.2. Search for an item in the control list.
10.2.1. Search by type of product and its industrial and technical purpose.
10.2.2. Keyword search methods on the control list
10.3. How to use the correlation list.
10.4. Use of open sources and use of special programs.
Section 11. Case Studies.
REPUBLIC OF AZERBAIJAN..
Section 1. Brief overview of International and National legislative framework.
1.1. International bilateral and multilateral Treaties and Agreements
1.2. Legal Framework of Azerbaijan.
Section 2. Basic customs procedures
Section 3. Classifier of customs documents.
Section 4. Transportation of strategic goods, as well as, transportation of dangerous goods.
Section 5. Risk management system in relation to goods subject to customs clearance.
Section 6. Interaction of the Customs Service with the authorities, agencies and stakeholders.
Section 7. Liability for violation of customs rules and procedures.
Section 8. National commodity nomenclature of foreign economic affairs
Section 9. Control lists.
Section 10. Case studies of customs clearance and customs control of dual use goods.
General introduction
In our days the European slogan "A Secure Europe in a Better World" has become even more actual and important than ever. Being located in strategic geographic areas, under military threats and in the conditions of the ongoing war, the former soviet countries Azerbaijan, Georgia, Moldova and Ukraine continue to face numerous challenges and many difficulties in this matter.
The proliferation of dual-use CBRN goods and technologies leads to major risks for the development of weapons of mass destruction (WMD) and systems that pose threat to global stability and security, especially given the situation in the world where terrorism, extremism, and international conflicts are very relevant.
The dual-use CBRN goods and technologies are considered strategic for security reasons or due to international agreements and are generally suitable to be used for military purposes of such importance that their export is either prohibited altogether or subject to specific conditions. The term strategic goods refer to both military goods (named also as single use goods) and dual-use goods. Lack of knowledge in this vast and sufficiently important domain creates preconditions for both terrorist and extremist criminal groups for goods and technologies proliferation to build weapons of mass destruction and their delivery systems, posing threats to national and regional stability and security.
Elaboration of the Handbook on Customs Clearance and Customs Control of Dual-Use Goods is widely recognized as an efficient practice for providing knowledge and awareness to all stakeholders involved in the international trade of strategic goods, as well as customs control and enforcement. As a rule, these manuals are subject to regular updates due to the rapid industrial and technological development in the world.
To improve the export control system and make it more useful, it is first and foremost important to raise the level of knowledge and awareness of the national export control customs officers. The Handbook aims at the analysis and systematization of the EU policy in the field of dual-use goods and technologies export control, highlighting the national particularities for carrying out control procedures when moving dual-use goods across customs borders. This manual has been created to provide customs specialists and other stakeholders with reliable information on the legal framework concerning the main customs procedures related to strategic goods and will help them better deal with export control issues in their day-to-day work, guide how to easily solve problematic issues with dual-use goods transactions, and provide up-to-date information.
The Handbook was designed as a comprehensive guide, offering detailed insights into the intricacies of customs operations, regulations, and specific procedures prevalent in Georgia, Ukraine, Azerbaijan, and Moldova. It stands as a valuable resource, elucidating the nuances and distinctive features of customs practices within the GUAM member states.
The Annexes to the Handbook serve as a reference point, and delineate countries' unique customs landscape, encompassing import and export protocols, tariff structures, documentation requisites, risk management systems, liability for violations, national control lists, and relevant peculiarities of transporting dual-use goods. Focusing on the nuances of each country's export control framework, it offers valuable insights into the regulations, licensing requirements, and compliance measures governing the export of strategic goods within the region. Each participating country's export control system is comprehensively designed to enforce international agreements, prevent the illicit transfer of sensitive goods, and uphold national security interests while facilitating legitimate trade.
The working group:
Viorel DOAGA
Vitalie STRATAN
Ana TODERAS
Tatiana URSU
Alina TURCANU
REPUBLIC OF MOLDOVA
Section 1. A brief overview of international and national legislation
1.1. A brief overview of international legislation
International Conventions and Treaties
The provisions of international treaties, agreements and conventions, as well as the relevant United Nations (UN) Security Council Resolutions on Weapon of Mass Destruction (WMD), are the major international non-proliferation standards for signatory States, being legal supported by the most national governments.
Treaty on the Non-Proliferation of Nuclear Weapons (NPT)
The objective of the Treaty on the Non-Proliferation of Nuclear Weapons, commonly known as the Non-Proliferation Treaty or NPT is to prevent the spread of nuclear weapons and weapons technology, to promote cooperation in the peaceful uses of nuclear energy in order to achieve the nuclear disarmament. The Treaty obliges the signatory states to regulate trade in nuclear weapons, explosive nuclear devices, fissionable special sources or materials, as well as related equipment and materials.
The provisions of the NPT, particularly article II, envisage that each non-nuclear-weapon State Party to the Treaty undertakes not to receive the transfer from any transfer or whatsoever of nuclear weapons, or other nuclear explosive devices, or of control over such weapons, or explosive devices directly, or indirectly; not to manufacture or otherwise acquire nuclear weapons or other nuclear explosive devices; and not to seek or receive any assistance in the manufacture of nuclear weapons or other nuclear explosive devices.
Article III, paragraph 2 sets out that each State Party to the NPT to control export of specified nuclear materials, and undertakes not to provide: (a) source or special fissionable material, or (b) equipment or material especially designed or prepared for the processing, use or production of special fissionable material, to any non-nuclear-weapon State for peaceful purposes, unless the source or special fissionable material shall be subject to the safeguards required by this Article.
The NPT established a guarantee scheme under the responsibility of the International Atomic Energy Agency (IAEA), which is authorized to inspect and verify the fulfilment of the provisions of the Treaty. The IAEA Secretariat, with the active sustaining of the EU and several Member States, carries out different support activities under the Additional Protocol, the Small Quantities Protocol, including organization of nuclear safeguards seminars.
The Comprehensive Nuclear-Test-Ban Treaty (CTBT)
The Comprehensive Nuclear-Test-Ban Treaty (CTBT) is a multilateral treaty that bans all nuclear explosions, for both civilian and military purposes, in all environments. The nuclear testing regime is designed to detect any nuclear explosions on the ground, underground, underwater, or atmosphere. The purpose of the verification regime is to monitor compliance with the provisions of the CTBT, which fully proxies nuclear explosions.
The verification regime consists of the following elements: International Monitoring System, International Data Centre, and Global Communication Infrastructure and field inspections.
The Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on their Destruction
The Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on their Destruction (the Chemical Weapons Convention or CWC) aims to eliminate an entire category of weapons of mass destruction by prohibiting the development, production, acquisition, stockpiling, retention, transfer or use of chemical weapons by States Parties. States Parties, in turn, must take the steps necessary to enforce that prohibition in respect of persons (natural or legal) within their jurisdiction.
All States Parties have agreed chemically disarm by destroying any stockpiles of chemical weapons they may hold and any facilities, which produced them, as well as any chemical weapons they abandoned in the past on the territory of other States Parties. States Parties have also agreed to develop a verification regime for certain toxic chemicals and their precursors (listed in List 1, 2 and 3 in the Annex on Chemicals) in order to ensure that such chemicals are only used for purposes not prohibited under the CWC.
The Convention is an arms control treaty that outlaws the production, stockpiling, and use of chemical weapons and their precursors. The purpose of the Convention on the prohibition of the development, production, stockpiling and use of chemical weapons and their destruction is to stop the development, production, storage and use of chemical weapons worldwide. CWC is the first binding multilateral treaty to eliminate an entire category of WMD within a fixed timeframe.
The CWC obliges States Parties to implement a controlling system of production and trade of certain chemicals, the so-called scheduled chemicals. Signatory countries must have a registration and authorization system for these categories of chemicals (included in the so-called "lists"). The chemical industry and companies must provide regular information on production, processing, use and import / export / transit of chemicals. The designated national authority hands over this information to the Organization for the Prohibition of Chemical Weapons.
The CWC Annex on Chemicals contains three lists of chemical agents and precursors, the trade of which is properly regulated in the States Parties.
• List no. 1: Specify the agents and precursors, which refer directly to chemical weapons and are not used or used in insignificant quantities for other purposes.
• List no. 2: Enumerate the chemicals for limited trade and refers to chemical weapons.
• List no. 3: Contain the dual use chemicals and broad commercial destination.
According to Article I of the CWC, States Parties undertake not to create, produce, acquire, store, or transfer chemical weapons (directly or indirectly) to other persons.
The CWC inspection is truly pioneered in international law. This means that any State Party that has doubts about compliance with the rules established by another State Party may request the Director-General to send an inspection team. In this inspection procedure, the States Parties to the CWC, undertake to respect the principle of inspections "anytime and anywhere" without a right of refusal.
The Organization for the Prohibition of Chemical Weapons (OPCW) was set up to implement the provisions of the CWC in order to achieve the vision of a world free of chemical weapons and threat, where chemistry is designated exclusively for peaceful purposes, for progress and prosperity. The OPCW and its member states continue to commit themselves as states that are not parties to the OPCW to understand the value of the CWC and its contribution to regional and international peace and security. The CWC Universal Action Plan, developed in 2003, guides these activities.
Convention on the Prohibition of the Development, Production and Stockpiling of Bacteriological (Biological) and Toxin Weapons and of their Destruction
The Convention on the Prohibition of the Development, Production and Stockpiling of Bacteriological (Biological) and Toxin Weapons and on their Destruction (BTWC) is successor of the "Protocol prohibited the use in war of asphyxiating, toxic or similar gases and bacteriological means" (adopted by the League Nations, Geneva, June 17, 1925). It is the first Universal Treaty that prohibited the development, production, acquisition, transfer, retention, storage and use:
• of biological agents and toxins "of types and quantities that have no justification for prophylactic, protective or other peaceful purposes";
• weapons, equipment and delivery vehicles "designed to use such agents or toxins for hostile or armed conflicts".
According to the Article III of the BTWC, States Parties to the convention undertake not to transfer to any beneficiary, either directly or indirectly, and in any way assist, induce or imply any state, group of states or international organizations in production or acquisition, in other ways, microbial or other biological or toxin substances (regardless of their origin or method of production), the type and quantities of which do not comply with preventive, protective or other peaceful purposes.
Unlike the CWC, the BTWC does not have an evidence mechanism to monitor compliance, and the negotiations on the creation itself have not been finalized so far. The treaty regime mandates States Parties to deal with compliance issues; consults each other and allows them to submit a complaint to the UN Security Council.
Following the evolution of more sophisticated and complex terrorist threats and actions, there has been a clear interest in implementing the BTWC and ensuring worldwide participation. States Parties have agreed to promote the effective implementation of the BTWC at national level, including integration into education, mobilization, and awareness. In this respect, a small support unit for BTWC implementation, responsible for information, was created within the Geneva Branch of the United Nations Office for Disarmament Affairs. The Council of the European Union approved a decision (PESC) in support of BTWC. Education, information and awareness-raising activities take place within the scientific, professional and academic associations, organizations and institutions of the States Parties.
The Arms Trade Treaty
This Treaty provides that each state party shall adopt measures aimed at the implementation of national laws and regulations leading to the successful implementation of the Treaty's provisions.
Article 15 refers to the States Parties powers, which provide mutual assistance for investigation, prosecution and judicial proceedings related to the violation of the national legal obligations established by the Treaty.
United Nations Security Council Resolution 1540 (UNSCR 1540)
The United Nations Security Council Resolution (UNSCR 1540) (2004) is the pillar of the international community efforts in the field of Strategic Trade Control (STC).
The Resolution sets out obligations (in accordance with Chapter VII of the UN Charter) of Member States to develop and implement legal and regulatory measures appropriate to the non-proliferation of chemical, biological, radiological and nuclear weapons and their means of delivery, the dissemination of weapons of destruction. It is worth noting that this resolution recognizes non-state proliferation as a threat to international peace and security (Chapter VII of the UN Charter).
The UNSCR 1540 decided that all States shall refrain from providing any form of support to non-State actors that attempt to develop, acquire, manufacture, possess, transport, transfer or use nuclear, chemical or biological weapons and their means of delivery, in particular for terrorist purposes. The resolution requires all States to adopt and enforce appropriate laws to this effect as well as other effective measures to prevent the proliferation of these weapons and their means of delivery to non-State actors, in particular for terrorist purposes.
By virtue of its universal and binding character, UNSCR 1540 marks a deviation from previous non-proliferation agreements and adds a new level to the non-proliferation regime. Until the resolution was adopted, the non-proliferation regime was based on numerous overlapping agreements that did not impose binding universal obligations.
UNSCR 1540 supports and relies on certain obligations to regulate the various types of commercial transactions specified in international treaties and agreements, and states that all states must establish effective systems for regulating trade in ADM related materials.
UNSCR 1540 provides that States:
• refrain from supporting countries that are not part of this resolution and who are trying to develop, supply, produce, possess, transport, transfer or use nuclear, chemical or biological weapons, and means of delivery;
• develop and implement measures to detect, discourage, prevent and combat broker activity with such objects;
• establish, develop, revise the laws and regulations governing export, re-export, transit, transshipment, including financing and related services, and conduct national end user controls.
The RM regularly reports to UNSCR 1540 Council Committee the fulfilment of its commitments. Four national reports (2004, 2005, 2007, and 2013) were presented. Based on them, the UNSCR Matrix 1540 for RM has been revised (2004, 2005, 2008, and 2013).
International Export Control Regimes for Dual-Use Goods
The Hague Code of Conduct against proliferation of ballistic missiles (HCOC)
The Hague Code of Conduct against Ballistic Missile Proliferation (HCOC) was adopted on 25-26 November 2002. It complements the MTCR and is the only multilateral instrument for transparency and confidence building on ballistic missile proliferation. HCOC is a negotiated multilateral code outside the context of the UN system and recognized through multiple United Nations Resolutions on Missile Technology Control Regime. RM is part of the HCOC from 2002.
Security Initiative against Proliferation (PSI)
The Proliferation Security Initiative (PSI) is a voluntary global initiative launched by US President George W. Bush in 2003. It is a global effort that aims to stop trafficking of WMD, their delivery systems, and related materials to and from states and non-state actors of proliferation concern. The PSI conducts information activities to identify, develop and promote the capabilities and critical practices of PSI within the PSI community, organizes lectures, exercises and mobilization seminars.
The Prohibition Principle Declaration, which includes all PSI participants, provides common standards for banning proliferation-relevant cargo. The 2013 political summit identified four critical capacities and practices:
1. prohibition of proliferation;
2. searching for and identifying illicit goods related to WMD;
3. seizure and disposal thereof; and
4. taking decisions quickly in cases of interdiction.
Container Security Initiative (CSI)
As the single, unified border agency of the United States, U.S. Customs and Border Protection's (CBP) mission is extremely important to the protect territory and people. Within months of terrorist attacks from 11 September 2001, U.S. Customs Service had created the Container Security Initiative (CSI).
CSI addresses the threat to border security and global trade posed by the potential for terrorist use of a maritime container to deliver a weapon. CSI proposes a security regime to ensure all containers that pose a potential risk for terrorism are identified and inspected at foreign ports before they are placed on vessels destined for the United States. U.S. CBP has stationed teams of U.S. U.S. CBP Officers in foreign locations to work together with the host foreign government counterparts. Their mission is to target and pre-screen containers and to develop additional investigative leads related to the terrorist threat to cargo destined to the U.S.
CSI is now operational in ports in North America, Latin America and Central America, Europe, Africa, Asia, including the Middle East.
The three core elements of CSI are:
• Identify high-risk containers, U.S. CBP and Border Protection's CBP uses automated targeting tools to identify containers that pose a potential risk for terrorism, based on advance information and strategic intelligence.
• Pre-screen and evaluate containers before they are shipped. Containers are screened as early in the supply chain as possible, generally at the port of departure.
• Use technology to pre-screen high-risk containers to ensure that screening can be done rapidly without slowing down the movement of trade. This technology includes large-scale X-ray and gamma ray machines and radiation detection devices.
Through CSI, custom officers work with host customs administrations to establish security criteria for identifying high-risk containers. Those administrations use non-intrusive inspection (NII) and radiation detection technology to screen high-risk containers before they are shipped to U.S. ports.
Multilateral embargos
It is important to analyze periodically information on embargoes, as they may vary from one country to another, depending on how the embargo is implemented. For example, some EU embargoes directly implement UN decisions; others modify the geographical scope or coverage of the included types of weapons. Countries have the right to implement their own embargoes, regardless of those applied by the UN.
Multilateral export control regimes
There are following four main MECR:
• The Nuclear Suppliers Group
• The Australia Group
• The Wassenaar Agreement
• The Zangger Committee.
These are volunteer consensus-based units that empower States to exchange sensitive information on commodities, software and technologies related to WMD, including conventional weapons, and to set common standards for trade regulation.
Each of them develops, maintains and updates the common control lists of the appropriate items, including the detailed description, technical specifications and the types of transactions, which Member States and adhering Member States should regulate them, including their application methods.
The adoption of MECR checklists and the integration of principles and directives into national laws and institutions are practical ways in which states tend to respect the international non-proliferation treaty and UNSCR 1540 obligations. As the MECR facilitates international legal compliance, and since many major suppliers and transit / transshipment countries all over the world are part of the MECR or adhere to the MECR directives, national review of checklists and their provisions is one of the best international practices in the field of strategic trade control.
Missile Technology Control Regime (MTCR)
The focus of the Missile Technology Control Regime (MTCR) is to limit the proliferation of missiles, rocket materials, full rocket systems, unmanned aerial vehicles and related technologies, designed for systems capable of carrying the payload of 500 kilograms at the distance of at least 300 km, as well as for ADM delivery systems. This regime also considers the challenges associated with intangible technology transfer as well as the importance of broker, transit and transshipment controls. The MTCR has grown to include 35-member countries that have agreed to coordinate their national export controls to stem missile proliferation.
The RM is part of MTCR (signed in 2013, ratified in 2015). The Initial Report (2016) and the First Annual Report (2017) have been presented so far.
The MTCR maintains a list of objects (Annex "Equipment, Software and Technologies"), the transfer of which is regulated by MTCR members and adherents.
The appendix is divided into two categories:
• Category I specifies complete rocket systems, Unmanned Aerial Vehicles (UAE), subsystems and production capabilities that cannot be exported or exported in exceptional cases.
• Category II specifies full rocket systems and UAE not included in Category I as well as dual-use equipment, materials and technologies, which can be exported if the six criteria for the risks of incorrect use are, met (http://mtcr.info/guidelines-for-sensitive-missile-relevant-transfers/).
Nuclear Suppliers Group
The Nuclear Suppliers Group (NSG) has the aim to prevent the proliferation of nuclear weapons through an appropriate export control system. The NSG contributes to restricting the export of sensitive items that may lead to the proliferation of nuclear weapons. The NSG harmonizes the process of implementing export controls for nuclear, dual-use equipment, materials and technologies (including software). The goal of NSG is to implement two sets of guidelines for exports of nuclear dual use products and equipment. Through its activities, NSG seeks not to interfere with international cooperation in the peaceful uses of nuclear energy.
The Guidance on the Export of Materials, Equipment and Nuclear Technologies:
Guidelines for nuclear Transfers (IAEA INFCIRC/254, Part 1)
The fundamental principles for safeguards and export controls should apply to nuclear transfers for peaceful purposes to any non-nuclear-weapon state and, in the case of controls on retransfers, to transfers to any State. In this connection, suppliers have defined the so-called trigger list. This list includes guidelines for nuclear transfers such as physical protection, safeguards, special controls on sensitive exports, special arrangements for export of enrichment facilities, controls on material usable for nuclear weapons, controls on retransfers as well as supporting activities.
Annexes of the guidelines govern the export of items that are especially designed or prepared for nuclear use. These include in the first annex (Annex A) material and equipment as well as technology associated with each of the items on the trigger list.
The second annex (Annex B) includes clarification of items on the trigger list:
• nuclear reactors and equipment there for;
• non-nuclear material for reactors;
• plants and equipment for reprocessing;
• plants and equipment for fabrication of nuclear fuel elements;
• plants and equipment for separation of isotopes;
• plants for heavy water production; and
• plants and equipment for conversion.
A further annex (Annex C) describes criteria for levels of physical protection.
Guidelines for transfers of nuclear-related dual-use equipment, materials, software, and related technology (IAEA INFCIRC/254, Part 2)
With the objective of averting the proliferation of nuclear weapons and preventing acts of nuclear terrorism, suppliers have considered procedures in relation to the transfer of certain equipment, materials, software, and related technology that could make a major contribution to a “nuclear explosive activity,” an “unsafeguarded nuclear fuel-cycle activity” or acts of nuclear terrorism. In this connection, suppliers have agreed on the following principles, common definitions, and an export control list of equipment, materials, software, and related technology.
This second set of NSG Guidelines governs the export of nuclear related dual-use items and technologies, that is, items that can make a major contribution to an unsafeguarded nuclear fuel cycle or nuclear explosive activity, but which have non-nuclear uses as well, for example in industry. The list includes Guidelines for the transfer of dual-use goods, which are listed in the annex. The annex lists the following categories:
• industrial equipment;
• materials;
• uranium isotope separation equipment and components (other than trigger list items);
• heavy water production plant related equipment (other than trigger list items);
• test and measurement equipment for the development of nuclear explosive devices;
• components for nuclear explosive devices.
There is no formal link between the NSG and the UN, but by implementing NSG guidelines and annexes at national level, the NSG helps governments to fulfil their national export control obligations - in line with UNSCR 1540 and, in particular, Article III.2 of the NPT. Therefore, the NSG has set out the normative basis and legitimacy of the NPT, to which all NSG members are States Parties.
Australia Group
All states participating in the Australia Group (AG) are parties to the Chemical Weapons Convention (CWC) and the Biological Weapons Convention (BWC), and strongly support efforts under those Conventions to rid the world of CBW.
The purpose of the AG Group is to promote licensing / authorization measures among participating States by ensuring that export of specified chemicals, biological agents, dual-use chemical and biological production facilities and equipment does not contribute to the proliferation of chemical and biological weapons. AG supports five lists of objects (common control lists) for export to which members of AG, adherents require a license / authorization:
• List of Chemical Weapons Precursors (including CWC List Items)
• List of production capacities, equipment, related technologies and software for the manufacture of dual-use chemicals
• List of equipment, related technologies and software for the production of dual-use biological products
• List of human and animal pathogens and toxins
• List of plant pathogens.
• The lists and the AG Guide are reviewed annually.
The AG Directive for the Transfer of Sensitive Chemical and Biological Substances provides certain key principles that AG members and adherents should consider in assessing trade with chemical, biological and other dual use related products. The directive aims to limit the risks of proliferation and terrorism related to chemical and biological weapons, empowering governments to carry out controls on tangible and intangible transfers of such objects to states or other non-state entities. The directive also provides for members to "have or to take certain measures", which would allow them to act appropriately in the case of broker services by looking at the items included in Joint Control Lists.
Wassenaar Agreement
The WA promotes transparency, information sharing, measures to encourage the transfer of conventional arms, dual-use goods and technology, and military destination. WA members establish and implement national policies that ensure transparent trade in accordance with the rules established for such objects that do not support the expansion of military capabilities that could undermine the regime's objectives or cause improper use.
WA maintains two extensive control lists:
• List of ammunition that specifies conventional weapons, software, technology, parts and components, the marketing of which must be regulated by WA members and adherents
• Dual-use list of products and technologies that specify 10 categories of products, software and dual-use technologies, including materials, electronic technology, computers and special telecommunication objects.
The WA document "Best practices for effective legislation on arms brokering" stipulates the measures that participating States should consider, regulate arms brokering, including the registration and licensing of transactions. Another WA document, dedicated to "Best Practices for Implementing Intangible Technology Transfer Control", calls for States to rigorously control intangible transfers of dual-use items and technologies.
The WA Directive reiterates the importance of regulating transit, transshipment, brokering and re-export activities as well as guarantees to end-users, the role of scrutiny. WA implements an information program for stakeholders aimed at encouraging the adoption of WA standards and promoting an effective national export control. The WA organizes annual briefings, information seminars, workshops and other events.
Concerning conventional weapons and dual-use goods, WA completes export control regimes aimed at preventing the proliferation of weapons of mass destruction.
Zangger Committee Also known as the "NPT Exporters Committee"
The Zangger Committee (ZC) was created after the entry into force of the Nuclear Non-Proliferation Treaty aiming at the scientific interpretation of Article III, paragraph 2 of the NPT, on the harmonization of export control policies for nuclear materials.
The ZC was formed following the coming into force of the Nuclear Non-Proliferation Treaty (NPT), to serve as the "faithful interpreter" of its Article III, paragraph 2, to harmonize the interpretation of nuclear export control policies for NPT Parties.
The Committee has been focusing on what is meant in Article III, ph.2 of the Treaty by "especially designed or prepared equipment or material for the processing, use or production of special fissionable material." The ZC maintains a Trigger List (triggering safeguards as a condition of supply) of nuclear-related strategic goods to assist NPT Parties in identifying equipment and materials subject to export controls.
The International Atomic Energy Agency (IAEA) in the INFCIRC/209 series publishes the Trigger List and the Zangger Committee’s understandings
As circumstances change in the use of nuclear technology, ZC's mission under the NPT is to consider changing security aspects and adapting timely the conditions and criteria of control, depending on needs.
Protocol for the Prohibition of the Use in War of Asphyxiating, Poisonous or Other Gases, and of Bacteriological Methods of Warfare
Geneva Protocol is a treaty prohibiting the use of chemical and biological weapons in international armed conflicts. It was signed in Geneva on 17 June 1925 and entered into force on 8 February 1928. The Geneva Protocol is a protocol to the Convention for the Supervision of the International Trade in Arms and Ammunition and in Implements of War signed on the same date, and followed the Hague Conventions of 1899 and 1907.
It prohibits the use of "asphyxiating, poisonous or other gases, and of all analogous liquids, materials or devices" and "bacteriological methods of warfare". This is now understood to be a general prohibition on chemical weapons and biological weapons, but has nothing to say about production, storage or transfer. Later treaties did cover these aspects — the 1972 Biological Weapons Convention (BWC) and the 1993 Chemical Weapons Convention (CWC).
The main elements of the protocol are now considered by many to be part of customary international law (BTWC).
1.2. A brief of national legislation
In the Republic of Moldova, regulatory controls on strategic goods are based on the following acts, regulations, orders and measures. The texts of the instruments are publicly available at www.legis.md (in Romanian and Russian languages).
Law no.1163/2000 on the control of export, re-export, import and transit of strategic goods[1], regulates the principles and procedure for controlling the export, re-export, import and transit of strategic goods, establishes the general provisions on such activity in order to ensure Moldova's national security, to promote the foreign policy of the country and to participate in international efforts on control.
Government Decision no. 606/2002 on the National System for Export Control, Re-export, Import and Transit of Strategic Goods in RM[2] ensures the implementation of the Law no.1163 / 2000 on export control, re-export, import and transit of strategic goods. This decision provides for the setting up of the Interdepartmental Commission for control, export, re-export, import and transit of strategic goods (Interdepartmental Control Commission), as well as the Regulation of this Commission. It includes:
• Regulation of the interdepartmental commission (Annex 1);
• Regulation regarding the control regime of strategic goods (Annex 2);
• List of strategic goods subject to control (Annex 3). (In section 10 you can see the structure of the Control list)
Law no. 160/2011 on regulating through authorization the entrepreneurial activity[3] is an organic law that establishes the legal framework for regulation by authorizing the entrepreneurial activity in the Republic of Moldova, as well as the Nomenclature of permissive acts with approved authorities involved in the process of issuing the permissive act, including strategic and dual destination goods.
Law no. 132/2012 empowered The National Agency for Regulation of Nuclear and Radiological Activities for authorization of nuclear and radiological activities[4]. It should be noted, that the authorization issued by them does not exonerate the economic agent from authorization for import /export /re-export /transit for strategic goods obtaining from the Agency of Public Services.
Law no. 130/2012[5] regarding the weapon and ammunition regime with civil purpose, establishes the categories of weapons and ammunition for civilian use, as well as the conditions under which the procurement, alienation, possession, port, use of these weapons and ammunition and operations with them are allowed on the territory of the Republic of Moldova.
Criminal Code of the Republic of Moldova no. 985/2002[6], article no. 13417 defines what strategic goods are and the punishment in case of violation of the current legislation in force.
At the same time Moldova is part of the main treaties and international agreements - the pillars of non-proliferation, adhering to or ratifying:
• Treaty on the Non-Proliferation of Nuclear Weapons. RM ratified it in 1994.
• The Comprehensive Nuclear-Test-Ban Treaty (CTBT). RM signed it in 1997, ratified in 2007.
• Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and their Destruction (CWC). RM ratified it in 1995, in force 1997.
• Convention on the Prohibition of the Development, Production and Stockpiling of Bacteriological (Biological) and Toxin Weapons and on their Destruction (BTWC). RM signed it in 2005.
• The International Code of Conduct against Ballistic Missile Proliferation, also known as The Hague Code of Conduct (HCOC). RM signed it in 2002.
The current legal framework offers the possibility of fair trade, as well as the coverage of money laundering, international sanctions, the non-proliferation of WMD etc. Considering an important fact that in the Art. no. 8 of the Constitution of the Republic of Moldova[7], it is obliged to comply with the provisions of the United Nations.
[1] https://www.legis.md/cautare/getResults?doc_id=136484&lang=ro#
[2] https://www.legis.md/cautare/getResults?doc_id=137102&lang=ro#
[3] https://www.legis.md/cautare/getResults?doc_id=138712&lang=ro#
[4] https://www.legis.md/cautare/getResults?doc_id=136567&lang=ro#
[5] https://www.legis.md/cautare/getResults?doc_id=136157&lang=ro#
[6] https://www.legis.md/cautare/getResults?doc_id=137033&lang=ro#
[7] https://www.legis.md/cautare/getResults?doc_id=136130&lang=ro#
Section 2. Structure of the Customs Service of the Republic of Moldova and functions of its structural divisions
Short history
The history of the customs system of the Republic of Moldova began after the proclamation of the independence and sovereignty of the state, more precisely on September 4, 1991. On that day, the Decree of the President of the Republic of Moldova no. 189 of 03.09.1991 "Regarding the subordination of customs institutions located on the territory of the Republic of Moldova". The normative act provided for the transfer of all customs structures on the territory of the Republic of Moldova to the management of the Government, composed at that time of Ungheni customs, Leușeni customs and Chisinau internal customs. Given the new realities, the customs system was formed as an emergency, with customs control posts being set up in a short time. Moreover, the newly created institution did not have enough staff, so it was necessary to hire a larger number of customs officials, who had to fulfill the basic mission of the institution, although they had a vague idea about the specifics of this activity. However, they quickly mastered the alphabet of the specialty and became good professionals. In 1992, the Ungheni and Leușeni customs offices were reorganized and created four new customs offices at the border with Romania: Sculeni, Costești, Cahul and Giurgiulesti. In addition, that year, were founded 22 customs control points at the border of the Republic of Moldova with Ukraine. Their activity was legalized on 20.03.1993, by signing of the Agreement between the Government of the Republic of Moldova and the Cabinet of Ministers of Ukraine "On customs border crossing points".
The first Customs Code - the basic legislative act that regulates the organizational and activity principles of the customs system was adopted on 09.03.1993.
Since October 1994, the Republic of Moldova has become a full member of the World Customs Organization (WCO).
The role of Customs has grown more and more with the development of international trade, the customs authority being fully engaged in the continuous modernization process, with the strategic objective of increasing the contribution to the economic development of the country. Over the years, important institutional reforms were promoted in the customs system, which contributed to building a modern customs authority with European aspirations.
The major result of this period is the consolidation of a body of career officials, professional and impartial, capable of contributing to the achievement of the institution's major objectives, one of the most important being ensuring the economic security of the state. The golden fund of the Customs Service is the contingent of officials, who were employed in the customs bodies at the stage of their formation and remained devoted to this job. They have become a standard of professionalism and loyalty, assuming the risk of the transition period for the edification of the rule of law.
Historical data:
04.09.1991 - Decree of the President regarding the subordination of customs institutions located on the territory of the Republic of Moldova.
1992 - 4 new customs offices were created at the border with Romania: Sculeni, Costești, Cahul, Giurgiulești, and the foundations were laid for the activity of 22 customs control points at the border with Ukraine.
09.03.1993 - The first Customs Code of the Republic of Moldova is adopted.
1994 - The Republic of Moldova became a member of the World Customs Organization (WCO).
15.08.1995 - The President's Decree established the 4th of September "Customs System Worker's Day", which is celebrated annually.
20.07.2000 - The Customs Code and the Law on service in customs bodies were adopted.
01.06.2001 - The Republic of Moldova becomes a member of the World Trade Organization (WTO)
The Customs Service of the Republic of Moldova is the administrative authority that carries out its activity under the Ministry of Finance, being a separate organizational structure in the administrative system of this ministry, established for the provision of public administrative services to customs payers, for the exercise and improvement of customs control, including on the legality of the introduction/ removing goods into/from the customs territory, performing customs formalities, creating the conditions for accelerating the traffic of goods across the customs border.
The Customs Service of the Republic of Moldova is the public administration body, which contributes to the development of the Republic of Moldova by ensuring the economic and fiscal security of the state, facilitating legitimate trade and offering quality public services to the business environment and citizens. For this purpose, the Customs Service ensures the administration of customs revenues, exercises control and supervision duties based on risk analysis and applies modern customs clearance techniques in a professional, transparent and responsible manner.
The Customs Service is a specialized public authority that exercises the effective management of customs activity in the Republic of Moldova through:
implementation of the customs policy,ensuring compliance with customs regulations when goods, means of transport and people cross the customs border of the Republic of Moldova,collection of import duties and export duties,customs clearance, customs control and supervision.
The duties of the customs body are regulated in Section 2, Article 11 of the Customs Code of the Republic of Moldova:
participates in the elaboration of the customs policy of the state and implements this policy;
ensures compliance with customs and fiscal legislation; defends the rights and legitimate interests of the person within the customs activity;
contribute, within the limits of competence, to ensuring the economic security of the state;
defends the economic interests of the state;
apply customs procedures for regulating economic and commercial relations;
collect import rights and export rights;
coordinates the application of the Combined Nomenclature of goods;
manages the Integrated Customs Tariff of the Republic of Moldova (TARIM);
participates in the development of economic policy measures regarding the passage of goods across the customs border and applies these measures;
fight against smuggling, the violation of customs regulations and fiscal legislation that refers to the passage of goods across the customs border, the illegal passage across the customs border of narcotic substances, weapons, art objects, objects of historical and archaeological value, intellectual property objects, species of endangered animals and plants (derivatives and their parts), other goods;
contributes to the prevention and combating of money laundering, as well as international terrorism;
exercises and perfects customs control, performs customs clearance, creates conditions for speeding up the traffic of goods across the customs border;
contributes and participates in the elaboration of foreign trade customs statistics and special customs statistics;
contributes to the implementation of measures to protect state security, to ensure public and moral order, to protect people's lives and health, to protect flora and fauna, the entire environment, and to protect the internal market;
exercise customs control over currency values, within the limits of competence;
ensures the fulfillment of the state's international obligations in the customs field; participates in the elaboration of international agreements in the customs field, in collaboration with customs bodies, with other public authorities from abroad, with international organizations in the customs field;
carry out scientific research, offer consultations in the field;
develops the technical-material and social base of customs bodies, creates conditions for the activity of customs collaborators;
manages the origin certification system, in the cases established by the Government, including certifying the origin of the goods and issuing certificates of origin against payment for the export of the goods;
carry out the necessary activities for risk management;
ensures the dissemination of customs legislation and access to information of public interest;
develops the public-private partnership in the customs field and collaborates with the business environment;
exercise other duties established by legislation.
Structure
The Customs Service is led by a director, assisted by 2 deputy directors, whose number is determined by the Government, upon the proposal of the Minister of Finance.
Structure of the customs system:
the central apparatus - institution that ensures the coordination and monitoring of customs activity at the national level; elaborates normative acts in the customs field; ensures the management process and institutional development; ensures the representation of the Customs Service in relation to other public authorities, the business environment, society as well as externally.
customs offices - territorial subdivisions of the Customs Service that ensure compliance with customs regulations in its area of competence. The customs system includes 3 customs offices: North Customs Office; Central Customs Office and South Customs Office
customs posts - territorial units subordinate to the customs office, which ensure the collection of import duties, the application of the procedures provided by customs regulations, customs clearance and customs control. The customs posts ensure the completion of customs documents for road, rail, naval, fluvial, air transport as well as postal shipments. The structure of customs posts includes border customs posts (at the Moldovan-Ukrainian state border and at the Moldovan-Romanian border) and internal customs posts.
In this context, increased attention is paid to the personnel at the border crossing points in order to ensure the fluidity of the traffic of people and means of transport. At the same time, the modernized structure ensures the strengthening of the collaboration mechanisms between the central apparatus and the customs offices, as well as the efficiency of the internal control system.
THE STRUCTURE OF MOLDOVAN CUSTOMS SERVICE
Section 3. Basic customs procedures
3.1. Customs Procedures
The customs code of the Republic of Moldova No. 1149-XIV/2000 establishes the following notions:
· customs control – set of actions undertaken by the customs bodies for the application and compliance with the laws and regulations that the customs bodies are tasked with applying;
· release for free circulation - the action by which the customs body leaves the goods and means of transport unconditionally and without restrictions at the disposal of the person after customs clearance;
· customs regime - all the customs regulations that determine the status of goods and means of transport depending on the purpose of the operation and the destination of the goods;
· export - customs regime in which the goods are removed from the customs territory without the obligation to re-introduce them to this territory. Goods produced in the country, as well as those imported and put into free circulation previously, are admitted for export, with the exception of goods that are subject to prohibition or restriction measures within the framework of the economic policy.
· import - the customs regime in which the goods introduced into the customs territory receive the status of goods put into free circulation only after the import duties are paid and the economic policy measures are applied.
· transit - the customs regime in which the goods are transported on the customs territory under customs supervision from one customs body to another, without the collection of import and export rights and without the application of economic policy measures, unless the legislation provides otherwise. Goods prohibited from being introduced into the Republic of Moldova or restricted goods cannot be placed under the customs transit regime if the national legislation regulating the transit of these types of goods has not been respected.
· re-export - the customs destination that consists in the removal of foreign goods and means of transport, previously placed in a customs regime with an economic impact, in the customs destinations free zone or duty-free shop, from the customs territory without charging export rights and without applying economic policy measures, in accordance with this code and other normative acts.
Any form of customs control is applied based on risk analysis, which determines the degree and forms of customs control: documentary control, physical control or exemption from control (respectively, the yellow, red or green lane). The process of selecting customs declarations per color is automated and managed by the integrated customs information system (the information and algorithms underlying the risk analysis are information for internal use by the customs and cannot be accessed by an economic agent).
Customs control is one of the important elements of the national control system of export, import, re-export and transit of strategic goods. The main objectives of customs control consist in the prevention of unauthorized export, import, re-export and transit, as well as the fight against smuggling, the violation of customs regulations, the identification, prevention and combating of violations of the order of movement of controlled goods at the customs border of the Republic of Moldova.
The general activity of the Customs Service is regulated by the Customs Code of the Republic of Moldova No. 1149-XIV/2000. But the Customs Code refers only indirectly to the regulation of the movement of controlled goods. The regulation of this field is carried out on the basis of Law no. 1163/2000 regarding the control of the export, re-export, import and transit of strategic goods in the Republic of Moldova and Government Decision no. 606 of 15.05.2002, other normative acts that regulate customs activity, as well as the international treaties to which the Republic of Moldova is a party part.
In its control activities of export, import and transit of strategic goods, SV actively interacts with other members of the Interdepartmental Control Commission (CIC). This previously mentioned commission includes a customs official with a management position within the SV, because the SV is the body directly responsible for controlling the movement of goods across the customs border of the Republic of Moldova and controls the availability of export, re-export, import, transit documents for economic activity participants.
3.2. Special features of customs clearance of goods and technologies included in national control lists
Goods and technologies controlled for import and export are subject to customs control and mandatory clearance. Upon acceptance of the Customs Detailed Declaration (DVD), the customs officer checks the declared goods for signs of dual-use goods.
The signs of controlled goods are:
a) General signs:
• the correspondence of the tariff position of the declared goods, according to the Combined Nomenclature of goods from Law no. 172 of 25.07.2014 with the tariff positions in TARIM, specified in the "Code of the tariff position of goods from external economic activity" column in the control lists;
• the presence of information carriers, classified under tariff headings 4901100000, 4901990000, 4906000000, 4911910000, 4911990000, 8471300000, 8471410000, 8471490000, 84715000 00, 847170, 8523 (except gramophone records), of technical documentation in the form of software, technical reports -scientific, diagrams, models, formulas, technical designs and specifications, reference materials, instructions and other technical documents.
b) Specific signs:
• correspondence of the name of the declared goods with the general technical name specified in the "Name" column of the control lists (according to Annex no. 3 of GD 606/2002);
• the correspondence of the declared goods with the goods used in the production of WMD, their means of delivery, other types of weapons and military equipment (according to Annex no. 3 of GD 606/2002).
The belonging of the goods to the controlled goods is determined by the correspondence of their technical parameters and the descriptions of the goods specified in the "Name" column of the control lists (according to Annex no. 3 of HG 606/2002). The codes listed in the control lists are for reference only, are used for auxiliary purposes and do not attest to the belonging of the goods to be declared as controlled products. The identification of goods for export control purposes, as well as the execution of all necessary actions, related to obtaining the authorization to carry out external economic transactions with goods included in the control lists, or the permission to export them from the Republic of Moldova without authorization is the responsibility of the economic agent of the Republic of Moldova to foreign trade activities.
The right to establish the conformity/non-conformity of the goods, which are the subject of external economic operations with the goods included in the control lists, according to the legislation of the Republic of Moldova, is granted to the CIC responsible for carrying out the activities of identification of the controlled goods in accordance with the procedure established by the Government of the Republic of Moldova.
3.3. Customs Formalities
When carrying out the documentary control, the customs official analyzes the information mentioned in the DVD and the content of the documents attached to it, in order to identify the signs of the controlled goods on the declared goods;
· when identifying the signs of a controlled product on the declared goods, the authorized customs officer checks the presence of one of the following documents confirming the declared information about the goods: authorizations, certificates and other necessary documents, issued by ASP.
· Pursuant to one of the above documents, the customs official verifies the correctness of entering the relevant information in section 44 of the DVD, according to SV Order no. 346-O of 24.12.2009.
In the absence of an authorization document, the customs official who performs a documentary control, in order to carry out an additional verification of the information about the possible belonging of a product to the controlled goods, in accordance with the procedure established by SV Order no. 480-O of 18.12.2006, redirects the DVD to the yellow aisle for the documentary control and consultation of the authorization and certification section of ASP.
The additional consultation with ASP representatives of the declared information about the product is carried out to guide the customs official on making the authorization decision in the manner established by the legislation of the Republic of Moldova in the field of export control, or releasing the goods without it.
In order to carry out additional control, commercial documents, technical documents on the goods presented by the declarant, as well as information received from law enforcement and regulatory authorities are examined. Technical documentation includes: form, passport, label, quality certificate for products, or similar documents issued by a direct manufacturer, providing the possibility of additional information to identify the goods (product).
In the absence of a set of confirmatory documents, technical documentation for the product, the customs officer requests a request or a notification regarding the need to present additional documents to be able to identify the declared goods.
Further examination includes the following steps:
a) checking the availability of technical documentation for the declared goods and their compliance with the following basic requirements:
· the documents contain the registration data of the organization that issued the document, as well as the necessary signatures and stamps;
· the copies are clearly distinguished and certified by the head of the company (signature, stamp on each sheet or file);
b) verifying the correctness and identity of the product information entry in section 31 of the DVD and commercial documents. The name of the goods in the commercial documents must fully respect the name of the product in the technical documentation;
c) work with the control lists, in order to:
• identification in the control lists of the positions in which the code from the Combined Nomenclature of goods is indicated;
• identification in the control lists of the general technical name of the declared goods;
• contrasting the name of the declared goods, the values of the technical parameters, specified in the technical documentation, with the general technical name, description and parameters of the controlled analogue product;
d) studying commercial documents to identify signs that indicate the need for additional verification of external commercial transactions in terms of compliance with RM legislation in the field of export control;
e) verification of the information received from the Directorate of risk analysis of the Customs Service of the Republic of Moldova regarding the possible use of the declared goods in the production of WMD, their means of delivery, other types of weapons and military equipment, as well as the possible involvement of the end user of the goods or of the sender on violations of RM legislation in the field of export control;
f) evaluation of the risk criteria associated with non-compliance with the prohibitions and restrictions regarding the movement of goods across the customs border of the Republic of Moldova, established by the Customs Service and the Customs Offices.
Based on the generalization of the results obtained at all stages of the examination, the customs official receives one of the following decisions:
• the need to confirm the declared information about the product by submitting authorizations, certificates, issued by ASP;
• the release of goods without the need for authorizations, certificates, issued by ASP.
The reasons for the adoption of one of the listed decisions are indicated by the customs official, who will also complete the customs operation, in the Inspection Act on the DVD.
If the name of the declared product corresponds to the general technical name of the product included in the control lists, the customs officer shall:
Decision 1: on the need to confirm the declared product information by submitting an authorization provided that:
a) the economic agent did not present the authorization issued by ASP and the technical documentation for this product;
b) the technical documentation does not comply with the necessary requirements;
c) the absence in the technical documentation of the name of the parameters or units of measurement of the technical characteristics, identical to those in the control list;
d) correspondence of the declared product with its controlled counterpart according to its functional purpose, operating principle and technical similarity;
e) availability of technical information on an information carrier in the form of software, scientific and technical reports, drawings, diagrams, models, formulas, technical projects and specifications, reference materials, instructions, etc. technical and technological documents (technical information sold through a retail distribution network is not subject to control);
f) in other cases of justified doubts regarding the reliability of the declared data regarding the declared goods or the discrepancy between the declared products and the controlled analog ones.
The completed inspection report will exhaustively reflect:
a) the name of the position in the lists of controlled goods with which the declared goods correspond or can be correlated, with references to GD 606/2002 by which these lists are approved;
b) other signs indicating the correlation or possible belonging of the declared goods with those controlled.
The decision regarding the possibility of releasing the goods is the responsibility of the customs official by consulting the ASP specialist.
The decision 2. regarding the possibility of release without authorization is taken by the customs official:
a) in case of non-compliance of the declared goods with the control lists based on the general signs;
b) in the case of correlation of the declared goods with control lists based on general and specific or only specific signs – non-compliance of the declared goods with the requirements established for their technical analogue, provided in the control lists;
c) in the absence of information, which indicates the need for additional verification of an external commercial transaction in order to comply with the legislation of the Republic of Moldova in the field of export control.
In this case the Inspection Act will exhaustively reflect:
a) the name of the position from the lists of controlled goods from Annex no. 3 GD 606/2002, with which the declared goods were compared;
b) the de facto technical characteristics of the goods (in accordance with the technical documentation for the goods presented for customs clearance);
c) the conclusion regarding the result of comparing the descriptions of the general technical name of the declared goods and the controlled analogue;
d) the list of documents, used to substantiate the decision.
The adopted conclusion is entered by the customs officer in the Act of inspection of the DVD.
3.4. Customs control of goods
CONTROL OF IMPORTED GOODS
In order to ensure compliance with customs legislation, to prevent fraud, the customs authority applies various customs control procedures and tools.
Goods and means of transport are subject to selective customs control. Selectivity provides that the customs authority uses, based on the risk analysis, those forms of control that are sufficient to ensure compliance with the legislation.
Note: The customs authority is entitled, as appropriate, to use all forms of customs control.
Thus, in the customs clearance process, customs control is applied according to the degree of risk determined by the "ASYCUDA World" information system, which leads to directing customs declarations to one of the customs control lanes (green, blue, yellow or red):
· the green corridor – the granting of customs clearance without performing documentary and physical control;
· the blue corridor – the granting of customs clearance without performing the documentary and physical control, with the subsequent control based on the principle of selectivity being carried out through the reverification of the customs declaration;
· the yellow corridor – performing the documentary control, without performing the physical control;
· the red corridor - performing the documentary and physical control.
I. Document control
When performing the documentary control, the documents attached to the customs declaration are checked (at least the following mandatory documents: 1) the invoice; 2) transport documents; 3) permissive documents, necessary for granting customs clearance). At the same time, other documents can be additionally requested that confirm all the data indicated in the customs declaration and which are necessary for the granting of customs clearance.
The documents attached to the customs declaration must be presented to the customs authority in original, and in the case of the electronic declaration, the documents are scanned and attached to the customs declaration.
If the declarant has the documents required for customs clearance completed in foreign languages, the customs authority may request their translation.
The documentary control consists in verifying: the correctness of completing the customs declaration in detail; the existence of the documents attached to the customs declaration in detail, according to the requested customs destination; the agreement between the data entered in the customs declaration and those in the attached documents; the form of the attached documents.
II. Physical control
Physical control consists in checking goods and means of transport with the aim of confirming information about the nature, origin, condition and quantity of the goods, the condition of seals, stamps and other means of identification.
Physical control can be carried out by: identifying goods, counting seats or parcels, weighing, measuring, photographing, taking samples and samples, applying special customs control equipment and other control tools in order to confirm the data indicated in the customs declaration and/or in the accompanying documents.
The customs authority can apply the following types of physical customs control of goods:
- partial (with the verification of a part of the cargo lot, sufficient to ensure compliance with customs legislation);
- total (with verification of the entire cargo lot). It is applied, in particular, in situations where there are solid indications of non-compliance with the customs legislation in force or when the selectivity criterion expressly indicates the need to check the entire batch of goods, as well as in cases where, based on the risk analysis, it has been established that a partial control will not be sufficient to ensure compliance with customs legislation;
- carried out in order to take samples and samples for the research (expertise) of the goods.
The declarant and other holders of rights over goods and means of transport, as well as their representatives, are obliged to assist in the control of goods and means of transport and to provide assistance to the customs authority in carrying out the control.
The declarant or his representative is obliged, at the request of the customs body, to handle, unpack and repack the goods, without causing their degradation. The expenses related to these operations will be covered by the declarant.
If the declarant does not appear within 10 days from the presentation of the goods or the control cannot be postponed for security reasons or due to other circumstances that cannot be postponed, the customs will carry out the control in the absence of the declarant, but in the presence of persons not interested in the result the control.
When carrying out customs control, technical means of control can be applied that do not pose any danger to the health and life of people, animals and plants and that do not cause damage to goods and means of transport. Customs has an arsenal of non-intrusive customs control equipment (scanners located at road border posts, at the airport and, in the near future, at the railway).
Customs also has customs laboratories, including mobile laboratories, which are used for the purpose of physical-chemical analysis of the goods, necessary for verifying the correctness of the goods declaration. The customs laboratory is accredited for several tests and specializes in the fields of textiles, alcohol, petroleum products, food products.
The customs control is carried out in no more than 5 calendar days from the moment of receipt of the declaration and the information necessary for the customs control or, in case of physical control, from the moment of their presentation to the customs authority. For goods required in case of natural calamity, catastrophe or accident, as well as in the case of live animals, easily perishable goods, radioactive substances, mass information materials, the duration of customs control is limited to 3 days.
III. Subsequent control (post-customs audit and reverification of customs declarations)
The subsequent control activity can be carried out by post-customs audit or by reverification of customs declarations.
The main objectives of the subsequent control are:
· to provide assistance to operators to overcome system errors and any deficiencies in understanding customs regulations;
· to verify the correctness and completeness of the data entered in the customs declarations; to verify whether the obligation to declare the goods or to provide information has been fully complied with; to check whether the regulations related to customs regimes have been correctly applied;
· to identify errors, detect violations of regulations or cases of fraud.
a) Post-customs audit
The post-customs audit is a subsequent control of the goods, after customs clearance, which aims to verify compliance with the legislation in force by the persons established in the Republic of Moldova at the time the goods cross the customs border of the Republic of Moldova and their placement under a customs destination.
Forms of subsequent control through post-customs audit:
· general control – consists in checking all customs operations for a determined period;
· partial control – consists in checking one or more customs operations for a determined period;
· repeated control - is applied if the results of the subsequent control are inconclusive, incomplete or unsatisfactory or if new circumstances of fraud were subsequently detected.
1. Subjects of the audit
The persons involved directly or indirectly, in a professional capacity, in the operations subject to the post-customs audit, or the persons who have the respective documents and data for professional reasons, may be subject to the post-customs audit, implicitly:
· any economic agent that imports or exports goods;
· customs brokers;
· warehouse administrators;
· economic agents that are related to customs procedures;
· any economic agent that does not directly carry out import/export operations, but is related, directly or indirectly, to such transactions.
2. Audit procedure
The post-customs audit includes the following basic steps:
I. Planning the audit. The selection of economic agents proposed to be the object of the audit is carried out on the basis of the risk analysis, as well as other categories of available information. The customs bodies draw up the control plan, which is coordinated with the State Fiscal Service. In case of identification of coincidences in the part that refers to the person subject to the audit, it is mandatory to carry out common controls.
II. Prior information of the economic agent. The post-clearance audit is carried out on the basis of a control order. About the audit, the audited person is informed in writing at least 3 working days before the date of initiation of the control, except for unannounced control. The control plan is published on the website of the Customs Service and can be accessed at this link https://customs.gov.md/ro/articles/graficul-controalelor. The prior notification is made with the aim of not disrupting the current activity of the economic agent and for it to be able to make available to the audit team an adequate work space, registers and financial-accounting records, other data that are directly related or indirectly with import/export goods, goods storage spaces, ensuring the presence of competent people.
III. Performing the audit. The audit period must not exceed 2 months. This term can be extended by a maximum of 4 months in well-founded and documented cases.
The audit is carried out by an audit team designated for this purpose and is carried out at the company's headquarters during the working hours of the customs body and the controlled person.
If, in the course of the audit, it is necessary to establish certain facts and circumstances based on documents or goods that are in the possession of another person, with whom the audited person has or had economic and/or financial relations, the customs authority is entitled , with the issuance of a new control order, to carry out a cross-check.
During the audit, the following is carried out:
- control of documents (persons carrying out external economic transactions are obliged to keep the documents related to these operations, for the purpose of subsequent control, for a period of 5 years);
- verification of accounting records
- performing cross-checks (when necessary)
- physical verification of goods subject to controlled operations
If during the audit process violations of the legislation were found, the customs authority performs, together with the audited person, their examination, draws up a report and informs the audited person about the legal consequences of the respective violations.
Within 7 working days from the drawing up of the minutes, the audited person has the right to submit additional information and documents to the customs body in writing.
The results of the post-customs audit are stipulated in the Act of post-customs audit, which describes the violations of the legislation and/or the degree of correctness of the calculation and extinguishment of the customs obligation.
Based on the act, the customs authorities take measures to calculate and collect the customs duties due.
The Regularization Decision serves as proof of the appearance of the customs obligation, which constitutes a debt title.
3. The rights and obligations of the controlled person
The controlled person has the right:
a) to request obtaining, during the subsequent control through post-customs audit, information about the established facts and circumstances, in compliance with the legislation in force;
b) to benefit from a fair and impartial attitude on the part of the customs bodies when carrying out the subsequent control;
c) to present to the customs body explanations regarding the object of the subsequent control;
d) to challenge, in the manner established by the legislation, the decisions, actions or inactions of customs bodies and customs collaborators;
e) to present, in any form, to the customs body information, data, documents that confirm the correctness of the calculation and payment of import duties;
f) to be informed, at least 3 working days before the initiation of the subsequent control through post-customs audit (with the exception of unannounced post-customs audit), through a post-customs audit notice, the model of which is established by the Customs Service;
g) to benefit from other rights established by legislation.
The controlled person has the following obligations:
a) to keep the accounting and ensure the integrity of the respective documents in accordance with the requirements of the legislation;
b) to present, at the first request, in the subsequent control process, to the customs collaborators the goods acquired or held, information, data, documents in any form, necessary for verification;
c) to ensure the customs collaborators, during the conduct of the post-customs audit, free access to the headquarters, production premises, warehouses and other rooms, with the exception of those used exclusively as domicile and residence, for their inspection;
d) to ensure the integrity of the seals applied by the customs collaborators;
e) to assist in the performance of the subsequent control, to sign the documents regarding its result and, in case of disagreement, to present, within 15 calendar days at most, the arguments for the disagreement, attaching the necessary documents;
f) to ensure adequate conditions for carrying out the post-customs audit, to make an office available to customs collaborators, ensuring the necessary assistance;
g) to ensure the presence of qualified personnel from the audited person in order to help customs collaborators during the post-customs audit.
b) Rechecking the customs declaration
The re-verification of the customs declaration is a form of subsequent control, which is carried out at the office of the customs authority and consists in verifying, after the granting of customs clearance, the correctness and completeness of the information provided in a customs declaration, as well as the existence and compliance of the documents supporting documents attached to it, necessary for placing the goods in a customs destination, other documents related to the verified operations at the disposal of the customs authority, another body with fiscal administration powers or other institutions and persons.
Re-verification is carried out according to the result of the risk analysis.
In case of detection of irregularities or violations of customs/fiscal legislation, upon completion of the reverification of one or more customs declarations, the staff assigned with reverification duties draws up the presentation note, then, after approval, the report of reverification of the customs declarations is drawn up , which is brought to the attention of the customs payer.
In the case of detection of errors and/or discrepancies between the information in the customs declarations and those in the verified documents that lead to the appearance, modification and/or cancellation of the customs obligation, the customs authority is obliged to communicate this to the customs payer by drawing up the re-verification report customs declarations.
In case of detection of a customs violation that leads to the appearance of a customs obligation and non-fulfillment of the legal requirements of the declarant, the customs authority draws up a regularization decision.
In situations where the reverification of customs declarations is carried out on the basis of the documents available to the customs body or received from other authorities or persons, according to the legal provisions, as well as when the signing of the minutes of the reverification of customs declarations is refused or in the event that the person cannot be found, the report is signed only by the customs officer who carried out the reverification of the customs declarations. In these cases, the report of the reverification of the customs declarations will be made known and, respectively, communicated to the person whose declaration/declarations were reverified, by means of registered mail with acknowledgment of receipt.
Section 4. Classifier of customs documents
4.1. Types of Customs Declaration
Goods and means of transport that cross the customs border, goods and means of transport whose customs destination changes, other goods and means of transport in the cases established under the law are declared to the customs body.
The declaration is made in writing, verbally or by action, by electronic means or by other methods provided by the legislation.
The customs declaration, which is submitted to the customs authority, must be accompanied by all the documents necessary for customs clearance. In the case of submitting the customs declaration in electronic format, all the documents required for customs clearance are submitted in electronic format, with the application of the digital signature on the customs declaration, issued by the Public Key Certification Center of the public administration authorities.
The customs body has the right to request additional information to verify the data from the customs declaration or from other documents presented. The list of documents and additional information that must be presented is established by the Customs Service.
Electronic declaration is accessible to all economic agents and does not require certain authorizations from customs. At the same time, in order to declare electronically, the economic agent or his customs broker must have a digital signature issued by the Special Telecommunications Center.
The electronic procedure can be requested for all types of international transport (car, rail, air, postal items) and for all types of goods. Exceptions are only on import for goods transported in groupage (goods transported in a single means of transport and delivered to several recipients) and in the case of international postal items. In these cases, the goods must be presented to the internal customs post.
STAGES OF EXPORT CUSTOMS
Step 1: Registration at the customs office.
For the first export operation, the economic agent will register in one of the 3 Customs Offices in the area of activity where the company's headquarters are located.
At the customs office, documents of establishment of the economic agent, certificates confirming the bank accounts, samples of the signatures of the persons who have the right to act on behalf of the company, without appropriate powers of attorney, are submitted.
Step 2: Concluding the contract with the customs broker (if applicable).
If the economic agent wants to declare through a customs broker, a contract on customs services must be concluded with one of the companies licensed in the field of customs brokerage. The list of companies with the right to perform this activity can be accessed on the web page http://www.licentiere.gov.md/licenta.php?l=ro, and in the field "Type of activity" choose "39. *Customs broker activity*".
When selecting the broker, it is important to consider his experience, good reputation, professionalism of specialists, but also the proposed contractual conditions. Therefore, it is recommended to choose a broker who has been active in this field for a long time, has representative offices in several regions of the country and whose experience is confirmed and indisputable.
If the exporter prefers to self-declare the goods without engaging the services of a licensed customs broker, then he must go through Step 4 and 5 as follows.
Step 3: Obtaining access to the Customs Integrated Information System (if applicable).
Access to the customs information system is achieved on the basis of access keys issued at the request of the economic agent, which corresponds to the following criteria: to have an adequate IT infrastructure; to use the customs information system connection standards agreed by the Customs Service; to have at least one competent specialist in the field of customs clearance.
With the authorization, the person receives from the customs authority the access keys to the IT module for processing the customs declaration in detail.
Step 4: Obtaining the electronic signature.
In order to obtain the electronic signature, interested persons should submit a request to the Customer Support Service of the Special Telecommunications Center. The other types of digital signatures are not accepted by customs. https://www.cts.md/servicii/semnatura-electronica
4.2. Transport Documents
Step 5: Preparing the necessary documents for customs clearance.
The declarant must ensure that he has the documents necessary for export, so as to confirm the data indicated in the customs declaration. The minimum set of documents required for customs clearance includes:
1) commercial document – invoice
2) transport document
Transport documents (the official documents that accompany the load and contain information about the conditions and nature of the movement, as well as the basic characteristics of the transported goods).
⁻ When traveling by car:
• CMR - the international consignment note stipulated by the International Convention regarding the contract for the carriage of goods by road (Geneva, 12.05.1956);
• The TIR Carnet provided for by the International Convention on the international transport of cargo under the cover of the TIR Carnet (Geneva, 14.11.1975.);
⁻ When transporting by air transport – the bill of lading (freight) stipulated by the Convention on the unification of certain rules regarding international air transport (Warsaw city, 12.10.1929.);
⁻ When traveling by rail – the consignment note stipulated by the International Agreement on the International Carriage of Goods by Rail (entered into force on 01.11.1951);
⁻ When moving goods by means of naval transport – the bill of lading stipulated by the UN Convention on the Maritime Transport of Cargoes (Hamburg, 1978).
3) as the case may be, the permissive act.
To check whether the export of the goods in question requires the permissive act (license, authorization or certificate), you can access the Comprehensive Customs Tariff of the Republic of Moldova (TARIM), available online on the website of the Customs Service http://customs.gov.md/ro/content/tariful-vamal-integrat-al-republicii-moldova.
Although these documents are sufficient for submitting the declaration, the declarant can also attach other documents that he considers relevant, such as the contract under which the goods are exported, quality certificates, etc.
4.3. Other documents confirming the right of Possession, Use and/or Disposal of Goods
Step 6: Permissive acts for dual-use goods.
Law no. 160/2011 regarding the regulation by authorization of entrepreneurial activity /22/ introduces the new List of Permissive Acts issued by the issuing authorities to natural and legal persons for the practice of entrepreneurial activity.
Annex I, part II is limited to only 4 Permissive Acts for dual-use goods, issued by the Public Services Agency:
• Individual authorization to export strategic goods (with dual destination),• Individual authorization to import strategic goods (with dual destination),• Individual transit authorization of strategic goods (dual destination),• Individual authorization for the re-export of strategic goods (dual destination) with annex.
The above-mentioned authorizations are issued for the term requested by the economic agent, at the decision of the Commission.
When importing goods included in the Nomenclature of strategic goods subject to control or of goods considered strategic in another state, the Public Services Agency is authorized to issue upon request (article 9, paragraph 6, Law no. 1163/2000) [23]:
• International import certificate (Appendix 18),• End user certificate (Appendix 19),• Delivery verification certificate (Appendix 20),to be presented to the competent body in the country of destination.
By the same Appendix no., I, part II to Law no. 160/2011 legislates 2 types of permissive acts (authorizations) issued by ANRANR (art. 11, paragraph d), Law no. 132/2012):
• Radiological authorization;
• Partial radiological authorization.
All Radiological Authorizations are issued free of charge, for a period of 5 years.
Holding the radiological authorization, including the partial import/export one, does not exempt the economic agent from obtaining the individual authorization for strategic or dual-use goods from ASP.
Implementation procedures of Law no. 160/2011 are approved by HG no. 606/2002 [26] regarding the National Control System for the export, re-export, import and transit of strategic goods in the Republic of Moldova.
The Government establishes the authorized authority (Interdepartmental Control Commission) with the procedures for evaluating the request for export, import, re-export and transit of strategic goods, which submits a reasoned decision to ASP regarding the issuance or refusal of the requested authorization.
The issued authorizations are presented to the SV in original by the exporter/importer.
Step 7: Completing and submitting the electronic customs declaration, paying the fee for customs procedures.
The exporter or customs broker completes the customs declaration in the customs integrated information system and stores it with the scanned copies of the accompanying documents on the customs server, applying the electronic signature.
The exporter must ensure the transfer to the customs account of the amount of the tax for customs procedures, which is 0.1% of the value of the goods, taking into account the expenses related to the transport to the border, but not more than 500 euros.
The customs integrated information system registers the declaration. In the case of export, within one hour maximum, customs sends an electronic message allowing the goods to be presented at the border post requested by the exporter. Only in case of identification of risks, the customs requires the presentation of the goods at the internal customs post for control (it should be noted that, according to customs data, about 90% of export declarations are selected on the green corridor - without customs control).
Step 8: Transport to the border customs post.
When the goods are presented at the border customs post, the customs declaration is validated and the export is considered finalized.
Features of customs clearance and control of nuclear/radioactive materials
The national rules and regulations regarding the safe conduct of nuclear and radiological activities for exclusively peaceful purposes, in compliance with the obligations arising from the international treaties to which the Republic of Moldova is a party, are established by Law no. 132/2012 regarding the safe conduct of nuclear and radiological activities. According to the special provisions of art. 9 of Law no. 132/2012, it is prohibited:
• import, export, re-export, transit, temporary admission or temporary export of ionizing radiation sources (including part of medical or measuring equipment, calibration) without the appropriate permit issued by the National Agency for Regulation of Nuclear and Radiological Activities (ANRANR);
• the import of radioactive waste.
At the same time, it is prohibited to import previously used radiological installations or radioactive sources by presenting the declaration on personal responsibility of the legal entity importing the radiological installations or radioactive sources.
It is also prohibited to import closed radioactive sources without the obligation to return them after use to the manufacturer. The end user is obliged to provide proof of financial insurance in case of bankruptcy or loss of legal capacity.
ANRANR established that, in order to effectively control the movement of ionizing radiation sources and to prevent their unauthorized circulation on the customs territory of the Republic of Moldova, joint measures are being developed to control the circulation of ionizing radiation sources in accordance with national legislation.
According to article 18 of Law no. 132/2012, the Customs Service controls and admits, exclusively on the basis of ANRANR authorization, the export, re-export, import and temporary admission or temporary export or transit of sources of ionizing radiation, equipment with sources of ionizing radiation, nuclear materials or radioactive, as well as relevant information for the proliferation of nuclear weapons or other nuclear explosive devices.
In this context, the Customs Services approved Order no. 205-O of 21.05.2012 regarding the response procedures to combat illicit traffic with nuclear and radioactive material, by which the Regulation on Standard Operating Procedures at the scene of the incident was approved.
At the same time, when introducing and removing radioactive substances, which are transported under state control, they are subject to the priority order of customs clearance through simplified procedures (Article 138 of the Customs Code of the Republic of Moldova).
The transport of nuclear and radioactive materials is regulated by article 40 of Law no. 132/2012, as well as HG no. 434 of 16.07.2015 [36] for the approval of the Regulation on the safe transport of radioactive materials, according to which the transport of nuclear and radioactive materials is carried out exclusively by holders of the appropriate radiological authorization.
Each transport through the territory of radioactive sources or nuclear materials not exempted from the authorization regime requires obtaining the partial radiological authorization for transport in the established manner.
In accordance with the requirements of international legislation, radioactive materials must be transported only in specialized packaging. An exception to these rules is the movement of a limited number of isotopes in exempt packages (UN2908, UN2909, UN2910, UN2911, UN2912 according to the UN dangerous goods numbering). All other radioactive devices/materials are delivered in Type A, Type B (U), Type B (M), Type C packages.
Packages for the transport of radioactive materials are subject to mandatory certification and to cross the customs border, it is necessary to provide a valid security certificate (Article 4 of Law No. 132/2012). Type B (U), type B (M) or type C packages of foreign manufacture have a certificate of approval of the country of origin.
When concluding a contract for the supply of radioactive materials, it must be respected that their export, re-export, import and transit are carried out in accordance with the legislation of the Republic of Moldova on issues related to the control of strategic goods (Law no. 1163/2000 and HG no. 606/2002) and the safe conduct of nuclear and radiological activities (Law no. 132/2012).
Section 5. Transportation of strategic and dangerous goods
The transport of strategic and dangerous goods involves risks and must be carried out in a safe and secure manner to prevent accidental exposure or their use for malicious purposes. Here are some important aspects to consider regarding the transportation of strategic and dangerous goods. These categories also include CBRN (Chemical, Biological, Radiological or Nuclear) goods.
1. Regulations and Rules: There are strict international and national regulations and rules governing the transportation of CBRN materials. These include requirements relating to packaging, labelling, documentation, exposure protection and general transport security. It is essential to comply with these regulations and follow established procedures.
2. Specialized packaging: CBRN materials must be packed in special containers and properly sealed to prevent leakage or accidental release. These may include strong, watertight and sealed containers to protect the contents from external factors and movement.
3. Labeling and identification: CBRN materials must be properly labeled to indicate their nature and hazard. Labels should contain information about the substance, hazard level, handling instructions and other specific warnings. This facilitates the proper identification and handling of CBRN materials by specialized personnel.
4. Routes and planning: Transportation of CBRN materials should be carefully planned, considering safe routes and avoiding populated areas, sensitive areas or high accident risk areas. Proper route planning and coordination with relevant authorities can help minimize risks.
5. Security and protection: Transportation of CBRN materials must be accompanied by adequate security and protection measures. These may include security escorts, video surveillance, alarm systems, checks and strict access controls. Personnel involved in transport should be properly trained and aware of security procedures.
6. Cooperation and Communication: Effective communication and cooperation between all parties involved in the transportation of CBRN material is vital. This includes collaboration between carriers, responsible authorities, law enforcement and other relevant entities to ensure effective coordination and rapid exchange of information when necessary.
It is important to pay special attention to the transport of CBRN materials and take all necessary measures to minimize risks and ensure safe and secure transport of these sensitive materials.
Section 6. Risk management system in relation to goods subject to customs clearance
The Customs Service of the Republic of Moldova has an important role in the regulation of foreign economic activity. The basic mission consists in promoting the customs policy in order to ensure the economic security of the state, by facilitating and streamlining trade, securing the international traffic of goods and means of transport, in ensuring compliance with customs regulations, collecting import and export rights, in the fight against fraud customs, in the development of a professional and transparent administration, which implements international standards in order to simplify customs procedures and protects society by uniformly and impartially applying customs legislation. In order to achieve the established objectives, one of its basic duties is to ensure the control of goods, means of transport and other goods moved across the customs border of the Republic of Moldova, in order to ensure the economic security of the state and counter cross-border fraud. In order to manage the ever-increasing commercial volume that is currently due to the Russian aggression on the neighboring state of Ukraine, a rapid strategy based on selectivity through risk management is necessary. The harmonization of the Customs Code with the standards of the European Union, the development of foreign trade relations, the complexity of the tasks facing the Customs Service, the globalization of the economy, the possibility of applying modern information technologies conditioned the revision of the procedures and rules for carrying out customs control, according to European requirements and standards , and the development of new strategies in the targeted field, emerging from the risk assessment system.
All customs laws and regulations are aimed at ensuring the collection of customs duty payments, compliance with restrictions and prohibitions, and the application of special rules regarding quotas, preferential treatment and other trade policy measures. For each of these there is a corresponding risk that it will be violated by economic agents intentionally or involuntarily.
Risk management techniques attempt to identify and quantify these risks in order to be able to develop control procedures such as selection for documentary or physical control and to allow customs officials to focus their control efforts on those areas of risk where it is a breach of customs regulations is most likely to occur.
When performing the customs control, the customs bodies will be guided by the principle of selectivity and, as a rule, will limit themselves to forms of control sufficient to ensure compliance with the customs legislation of the Republic of Moldova. The forms of customs control are to be selected by applying the risk management system. To carry out an analysis of the risk management system, it is necessary to define the concept of risk management and highlight the benefits of using this system by the customs authorities. Therefore, risk management is the method that aims to select those transactions where violations of customs legislation usually occur or are most likely to occur and to direct the resources available to customs to these targets.
The benefits of using risk management are:
· Economic benefits by facilitating the movement of goods when the identified risk is low.
· Effective use of skills and experience to generate the highest possible results.
· Better quality of information and accountability customs controls.
Risk management is also a trade facilitation measure through which economic agents that comply with customs regulations can clear their goods without being subject to rigorous documentary and physical controls carried out by customs officials. The creation of a modern risk management system ensures the performance of an adequate customs control, based on the optimal redistribution of the resources of the Customs Service on the most important and priority directions of the activity of the customs bodies in order to prevent and combat the following violations of the customs legislation of the Republic of Moldova:
· systematic;
· related to evading the payment of import/export duties and other considerable taxes;
· which undermines the competitiveness of domestic producers' production;
· which harm other important interests of the state, the protection and respect of which is the responsibility of the customs bodies.
The implementation of risk management activities in the customs system of the Republic of Moldova began in 2005 by establishing the operating principles of risk management included in the Concept of the risk management system in the Customs Service, approved by Government Decision No. 1144 of 03.11.2005, as and in the internal normative acts of the Customs Service and the methodological documents developed according to international standards in the field, such as: Guide to the risk analysis activity; Load selectivity guide; Cargo selectivity management regulation; Cargo Examination Guidance Manual.
The risk management system is carried out by the Risk Analysis Directorate, which is a structural subdivision of the Anti-Fraud and Compliance Department within the Central Apparatus of the Customs Service, and at the level of customs offices - by the Risk Analysis Sections/Sectors. Analytical activity is carried out at national (central apparatus) and local (customs offices and customs posts), each level having the responsibility to ensure the collection, storage, updating and processing of information in order to establish the causes and conditions of the occurrence of risks, their identification and the implementation of actions neutralizing them. The risk analysis and management function represented by each subdivision must have access to the various sources of internal and external data and information relevant to the activity of preventing and discovering customs fraud in general. The place of a risk management process in the Customs Service is hatched in the figure below:
As sources that can be used are:
• internal sources of the customs authorities regarding the operational environment, regardless of the form (electronic support or paper) that can help the risk analysis activity;
• public - departmental sources, institutions with duties to ensure compliance with the law such as:
1. The Intelligence and Security Service - regarding smuggling of weapons, ammunition, combat equipment, explosive, radioactive, poisonous, narcotic, toxic and other substances;
2. Ministry of Internal Affairs - regarding illegal drug trafficking, car theft, weapons, ammunition and other criminal activities;
3. Ministry of Defense - regarding the proliferation of weapons and the passage of military personnel across the state border;
4. Ministry of Health - regarding medicinal products allowed for import, dangerous products, the database regarding the epidemiological situation in the countries of the world, counterfeit products, etc.;
5. Ministry of Economy - regarding the application of anti-dumping measures, the administration of quotas and quotas granted on the basis of free trade agreements to which the Republic of Moldova is a party, the trend of increase/decrease in the import/export of some goods based on the analysis of trade between the Republic of Moldova and other countries, the sales prices of goods on the domestic market, of dual-use goods and of strategic goods;
6. National Agency for Food Safety (ANSA) - regarding the veterinary and phytosanitary certificates issued for the import/export of products, the lists of economic agents who were denied the issuance of certificates, the issuance of authorizations for the import of planting material, seeds and breeding animals;
7. The Ministry of Culture - regarding the illegal circulation and crimes whose object is mobile cultural values regarding the database of stolen mobile cultural values and authorizations for the export/import of mobile cultural values;
International sources - the use of different sources of international data, reports or analyses, such as the systems and mechanisms for the exchange of data and information managed by:
1. World Customs Organization (exchange of information on customs fraud detected through the CEN database);
2. SECI regional center for combating cross-border crimes (Bucharest, Romania);
3. The regional office for the exchange of information in Eastern and Central Europe (RILO-Warsaw);
4. The European Union Border Assistance Mission in the Republic of Moldova and Ukraine (EUBAM).
5. In order to detect and prevent fraud of an evasive nature, the European Commission established within its own institution by Decision 1999/352 of April 28, 1999, the European Anti-Fraud Office (OLAF). The office was invested with the responsibility of leading anti-fraud investigations, benefiting from a special status as well as others such as Europol, Interpol, etc.
Other sources of data and information relevant to the prevention and detection of customs fraud, for example the Internet, mass media, other public sources.
What are the basic duties of the Risk Analysis Directorate:
1. Management of the selectivity system of SI "ASYCUDA World".
2. Profiling, assessment and management of determined and potential risks.
3. Collaboration with national/international institutions in the field of risk management.
4. Development of the risk management system. Therefore, structurally
The direction is made up of 2 sections:
The department of risk analysis in the application of the risk management system (S.A.R.) includes several stages, such as identification, analysis, assessment of risks and monitoring of applied measures. An integral part of S.A.R. is the development of selectivity criteria and risk profiles. The selectivity criteria are elaborated on the basis of risk indicators, the determinants being: the code of the goods, the country of origin, the country of destination, licensing, value, importer/exporter, type of transport, the purpose of the goods being in the customs territory, the financial consequences or the financial situation of the economic agent/natural person, etc. The risk profiles contain the descriptions of the risk areas, the risk assessment, the measures that need to be taken to prevent/reduce the risks, the term of application of the risk criterion, the results and the evaluation of the effectiveness of the application of the risk criteria.
The selectivity system is based on the existence of some filters that distribute the customs declaration (based on a string of determinants) on one of the 4 selectivity corridors:
red (mandatory documentary and physical control);
yellow (mandatory documentary control);
blue (customs clearance of cargo is carried out without the application of documentary and physical control but with the possibility of subsequent verification);
green (customs clearance of cargo is carried out without the application of control documentary and physical) duty free.
Currently, in the selectivity system, there are hundreds of risk criteria established depending on the commodity code, the country of origin, the country of destination, the type of transport, the purpose of the goods being in the customs territory, the economic agent, etc. The number of risk criteria is not a constant figure, as they are reviewed and updated as necessary. Due to the risk criteria, the selectivity parameters were revised in "SI ASYCUDA World" currently used by the Customs Service of the Republic of Moldova and which ensures the distribution of customs declarations on one of the control lanes described above depending on the level of risk. The identification of risk factors and their minimization is obtained through the daily analysis of the customs declarations in "SI ASYCUDA World", of the daily, quarterly and annual reports received as a result of the activity of the specialized sections, through the participation of the officials of the risk analysis sector in the physical controls and the activity within mixed teams. In order to identify actions to prevent risk factors, customs offices continuously update the list of credible economic agents and the list of economic agents that have committed customs fraud. In November 2009, the new version of "SI ASYCUDA World" was launched, which ensures the automated processing of all customs documents. The updated version of the system ensures the implementation of the new simplified customs clearance procedures; automation of the information exchange process with the control services according to the "single window" principle; implementing the Integrated Customs Tariff of the Republic of Moldova (TARIM) and optimizing the application of the principle of selectivity when performing customs control.
The figure above represents a risk management process in the Customs Service of the Republic of Moldova
The present methodology has a general nature of applicability at the national level and represents a unitary work tool at the level of the central and local Apparatus at the level of offices and customs posts. The purpose of the methodology is to improve the risk management process, by going through the basic stages:
· identification,· assessment,· management
· risk monitoring.
To better understand the description of the methodology, first of all we must define the notion of risk management, risk after and the basic stages:
Risk management - The process aimed at the identification, evaluation, management including treatment and establishment of a risk mitigation plan, periodic review, monitoring and establishment of responsibilities.
Risk - is a situation, an event, which has not yet occurred, but which may occur in the future, in which case, the achievement of previously fixed results is threatened or potential. Thus, risk can represent either a threat or an opportunity and must be approached as a combination of probability and impact.
Risk identification - is the first step in the risk management activity.
Risk assessment - Assessment of the impact of the materialization of the risk, in combination with the assessment of the probability of the materialization of the risk. Risk assessment is the value of risk exposure.
Risk management - The measures taken to reduce the probability of the possibility of the risk occurring or/and to reduce the consequences of the impact on the results of the objectives, should the risk materialize. Risk management means reducing exposure to risk, if it is a threat.
Risk monitoring - It is a type of risk response characterized by the acceptance of the risk with the obligation to monitor it permanently, especially to monitor the probability of the occurrence of the risk.
1. Identification of Risks
Risk management involves the identification and evaluation of risks, the identification and establishment of the response to the risk in order to reduce the possibility of defense of the risks, as well as the reduction of the consequences produced, as a result of the materialization of the risks. Identifying the objectives and activities related to their achievement in the risk identification process, the objectives and activities that contribute to their achievement are always considered. For a proper identification of risks, it is absolutely necessary to have a document that contains the objectives assumed at the entity level. This can be a management plan, an institutional strategic plan or another document that includes: general objectives, specific objectives, activities that contribute to achieving the objectives.
The central apparatus prepares internal documents for them and those at the level of customs offices to go through the following stages, namely the establishment of general and specific objectives:
• The general objectives are transposed into specific objectives, to which a series of expected results and indicators are associated and communicated to those in charge.
• The specific objectives must be defined in such a way that they meet the package of SMART requirements (S - specific, M - measurable, A - adequate, R - realistic, T - have a deadline). For a good management of risks at all managerial levels, the managers of the departments at the first level of management designate those responsible for the risks. They identify and collect the risks related to the objectives and/or activities assumed by the head of the department and monitor the risk management implementation process. The risk identification process is the first step in the risk management activity. It aims to discover all possible sources of risk, with the aim of eliminating or reducing the probability and effects/impact they can produce.
Risk identification can be in one of two phases:
· Risk identification in the initial phase - specific to newly established customs entities or subdivisions, without a history of risk management or without a very well developed risk management. The same situation occurs in the case of starting new projects or new activities in the reorganization process.
· Permanent identification of risks - specific to entities that have developed a coherent and consolidated system of internal managerial control and implicit risk management.
Effective risk management assumes that risk identification is a permanent process, which allows the Customs Service to be connected to the process of change and adaptation. An effective risk management process at the level of the Customs Service must also take into account the priorities of subordinate institutions that contribute to the achievement of the objectives of the Customs Service.
The main factors that can influence the external risk environment and that the Customs Service must take into account are:
· Laws and regulations – The customs service must permanently identify those laws and regulations, based on which it operates and which define the limits of the entity's action;
· Modifying / updating the objectives of the government program - in some situations, the handling of some risks by the leaders of the Customs Service is influenced by political decisions;
· Sometimes, the reduction of the budget that affects the attraction / maintenance / facilitation of professional training courses for the staff of the Customs Service.
In the risk identification process, it is the completion of the Risk Alert Act/Form. The risk alert form is used by customs officials, according to an internal procedure and according to the accumulated experience in risk management. The risk alert form contains: the name of the compartment in which the risk was identified, the details of the risk, the description of the identified risk, the specific objective to which the risk is attached, the causes, the consequences, the assessment of the risk, the estimation of the probability of occurrence, the estimation of the impact, the assessment of the exposure to risk, the person who identifies the risk, the date of drawing up the form, the manager of the department, etc.
The risk alert form is completed, checked and endorsed as follows:
· Completing the description of the risk, its assessment, recommending control measures and specifying the documentation used to substantiate the identified risk - by the person who identifies a risk, providing in this sense a preliminary assessment of the risk based on two indicators: the probability of the materialization of the risk and its impact.
· Expressing a risk opinion on the risk assessment and on the type of risk response and control measures, as appropriate – by the risk manager;
· The final decision to rank, escalate or retain the risk for management and approval of the Risk Alert Form - by the head of the department.
2. Risk assessment
The risk assessment is carried out following a type of response to the risk in an order of priorities and represents the stage following the identification of the risks. The risk assessment consists of:
· Estimation of the probability of materialization of risks;
· Estimation of the impact on the objectives/activities in case of materialization of risks;
· Risk exposure assessment - combination of probability and impact.
The risk assessment must:
· is based on the use of an evaluation scale;
· consider all those affected by the risk;
· distinguish between risk exposure and risk tolerance.
The purpose of the risk assessment consists in: establishing a hierarchy of the identified risks and depending on the risk tolerance, establishing the most appropriate risk treatment measures. A risk analysis cannot completely eliminate the risk of the decision, but it can give the management of the Customs Service the ability to decide whether or not the risk is acceptable, know the consequences of the decision, both positive and negative, and reduce the risks through control measures. Estimating the probability of the materialization of the risk involves the determination or assessment of a probability / uncertainty. A possible method of estimating the probability of the materialization of the risk is to take into account the frequency of the materialization of some risks in the past. As an evaluation tool, probability scales can be used. The values of these scales are generated by the experience of those who work in Risk Management at the level of the Central Apparatus of the Customs Service. Thus, several types of scales can be used to estimate the probability of a risk materializing:
The probability thresholds reflect the perception of the Customs Service on the uncertainty with which the identified risks can be associated. For some risks, a qualitative estimate is required, for others, a quantitative estimate is required. It is advisable to use the 5-step evaluation scale only if the Customs Service has accumulated sufficient experience in risk management.
3. Risk management
For the effective management of the Risk Management process, at the level of the Customs Service it is necessary to have:
· Structure with attributions in Risk Management;
· Responsible for risk management at the level of each department from the first management level within the Customs Service (Risk Manager) up to and including the customs office level;
· Risk Management system procedure. The system procedure must establish a general unitary framework for identifying, evaluating and managing risks at the level of the Customs Authorities.
Identifying, establishing and implementing the type of risk response. Risk tolerance is defined within the risk response type. Risk tolerance represents the amount of risk that the Customs Authority is prepared to tolerate or to which it is willing to expose itself at a given time in situations where the risk may be an opportunity or a threat. In this case, risk tolerance has a dual value. Example, the fluctuation of the entity's staff within the percentage limit of 10% - can be beneficial to the entity, representing an opportunity to "rejuvenate" the staff; if, however, the personnel turnover exceeds this limit, we can speak of a threat in the conditions where the entity can no longer retain qualified personnel, which can lead to the weakening of the Customs Service and therefore to the weakening of state security.
The risk profile provides an overview, including the general, documented and prioritized assessment of the range of specific risks faced by the customs entity. The risk profile is interpreted as follows:
· The risks located in the red area have the highest risk exposure and deviation from the risk tolerance and they demand, with priority, the initiation of control measures.
· The risks located in the yellow zone have an exposure that exceeds the risk tolerance limit, but the deviation from it is moderate. These risks can be treated by control measures or monitored, depending on the decision of the management of the Customs Service.
· The risks located in the green zone are those characterized by an exposure below the risk tolerance limit and in this zone are the assumed risks.
The basic tool in Risk Management is the Risk Register. The development of the Risk Register confirms that there is a functional risk monitoring system at the level of the Customs Authority.
fter the risks have been identified and evaluated and after the tolerance limit has been defined, the type of risk response is determined for each individual risk. In this sense, it is analyzed whether or not the risks can be kept under control. Alternative strategies can be identified in risk management. Customs management can adopt only one type of risk response, depending on the risk tolerance limit.
Types of risk response applicable in Risk Management are:
a. Risk acceptance/tolerance. It is a type of risk response defined by not initiating risk control measures, suitable for inherent risks that have an exposure lower than the tolerance limit. Acceptance is applied when the risks identified at compartment level are assumed by the people with decision-making functions or when no other type of response to the risk is possible.
b. Risk avoidance - is a strategy applied mainly for general support activities, if there is no other way to manage risks.
c. Risk transfer/outsourcing - this strategy involves entrusting risk management to a third party capable or specialized in managing such risks, as a rule, based on a collaboration memorandum. The outsourcing of risks to another state authority with more specific attributions than customs aims to reduce the risk exposure of the entity but also to better manage the transferred risk.
d. Risk treatment/management - This type of risk response involves taking control measures for inherent risks that have an exposure greater than the tolerance limit. In order to manage the risks, the risks with high red color exposure will be taken into account, and depending on the management's decision by approving the tolerance limit and the medium yellow risks above the tolerance limit. Average risks located below the tolerance limit will be monitored at the compartment level.
4. Monitoring the implementation of control measures
Control measures regarding risk management must ensure an acceptable level of risks, so that they are within the accepted tolerance limit.
At the level of the Customs Service, the process of monitoring the implementation of control measures is carried out on the basis of a plan. Thus, the Technical Secretariat of the Monitoring Commission receives information, control measures from those responsible for risks for the elaboration of the Plan for the implementation of control measures. The control measures implementation plan includes: the name of the risk, the control measures, the implementation deadlines, the people responsible for the implementation of the control measures.
Risk review and reporting is the final step that concludes the Risk Management process. The causes underlying the risk review are the following: Major changes that may occur in the institutional environment as well as in the business environment; Modification of risk profiles, as a result of the implementation of control measures and the change of the causes favoring the emergence of risks; the effectiveness of risk management and taking new measures, depending on the case.
In the review process, situations are analyzed in which: the risks persist; new risks have been identified, the impact and probability of risks have undergone changes; the implemented internal control tools are effective; certain risks must be managed at another level of management and others. The risk review must provide assurances regarding the evaluation of the risk management process at least once a year and tools for alerting hierarchically higher levels regarding newly identified risks or changes to existing risks, so that these changes are managed. Annual risk reporting is carried out on two levels, at the level of the Central Apparatus of the Customs Service and at the level of customs offices.
In conclusion, it should be mentioned that risk management is largely a trade facilitation measure because it allows law-abiding economic agents to clear their goods through fewer documentary and physical checks by customs officials. Risk management provides an opportunity for customs administrations to make objective selections and allows faster customs clearance of goods, thus leading to a consolidation of the national economy and an improvement of the economic status of the country's citizens.
https://customs.gov.md/ro/articles/graficul-controalelor
The UNODC-OMV Container Control Program (PCC) was established as a joint initiative of UNODC and OMV in 2004. Faced with such a complex and globalized problem, the PCC takes a nuanced, holistic and multi-sectoral approach, providing continuous monitoring and surveillance, offering a multitude of context-specific training programs and strengthening cooperation between state agencies and the private sector. The mission of the CPC is to strengthen the capacity of Member States that wish to improve risk management, supply chain security and trade facilitation at seaports, airports and land border crossings to prevent the cross-border movement of illicit goods.
CPC is currently operational in over 70-member states. More than 120 Port Control Units (PCUs) and Air Cargo Control Units (ACCUs) have been established since the establishment of the PCC in 2004. These inter-agency units are equipped to exchange information with their counterparts in other countries using a secure communication application developed by OMV called Container Comm. This gives PCUs and ACCUs access to a wealth of information, allowing users to share information about high-risk containers and verify their ID numbers.
Below is presented some figures with demonstrative examples regarding the numbers and their identification signs:
Figure 1 Coding, identification and marking of freight containers, front side
Figure 2 Codification, identification and marking of cargo containers, rear side
Figure 3 Coding, identification and marking of cargo containers, side
Figure 4 Coding, identification and marking of cargo containers, top/roof
These efforts resulted in the seizure of a wide range of prohibited goods such as arms and ammunition, fishery products, wildlife and other environmental crimes, prohibited drugs, strategic goods, counterfeit or unlicensed drugs, drug precursors and explosives, cigarettes, alcohol, stolen vehicles and goods that are counterfeit or otherwise infringe intellectual property law. PCC remains ideally positioned to support the strengthening of international supply chain security by strengthening the capabilities of national border administrations to address threats related to sea, land and air freight.
Key Activities
Establish and train Port Control Units (PCUs) and Air Cargo Control Units (ACCUs) composed of Customs, National Police, anti-narcotics forces and other law enforcement agencies to identify and inspect high-risk, disruptive shipments minimums of legitimate trade.
Conduct technical needs assessments of selected seaports, airports and land border crossings to assess the current situation and provide recommendations for future activities, including technical equipment and training needs.
Design and delivery of basic training, work-study tours, regional exchange visits, advanced specialized training and mentoring services. Organizing regional meetings and conferences to build capacity and promote an international coordination and cooperative response to crime in the containerized supply chain.
Encouraging PCUs and ACCUs to create partnerships and linkages with each other and with the private sector. Promoting closer cooperation and developing effective information and intelligence sharing mechanisms between law enforcement agencies around the world. A very important role is the promotion of women in PCUs and ACCUs to increase their role and influence in these units and in the wider law enforcement community.
Maintaining a global network of seaports, airports and land border crossings to effectively combat illicit cross-border trade.
Specialized Training - PCC offers a core curriculum of theoretical, practical and advanced specialist training, followed by regular mentoring. The first phase is theoretical training, during which officers are introduced to risk analysis, profiling and targeting techniques. The knowledge gained in theoretical training is then operationalized in practical training, which includes the application of profiling and inspection techniques in a professional environment. After the first two phases of formal training, PCU and ACCU officers conduct work study tours to observe best practice techniques and methods in benchmarking ports. To complement basic training, the Program offers advanced specialized training programs depending on country risk assessments and availability of funds. These programs cover a range of topics. The immediate beneficiaries of these programs are the relevant law enforcement agencies, whose personnel will be better structured, trained and equipped to more effectively target high-risk shipping containers. These measures also directly benefit legitimate trade by improving supply chain security and improving efficiency by minimizing unnecessary checks on low-risk containers.
A significant role for the PCC continues to prioritize the continued development of private sector partnerships. Cooperation between the private and public sectors improves competitive advantage, reduces costs and reduces operational risks for businesses. The PCC is ideally suited to support countries and regions in the implementation of United Nations instruments, resolutions and Sustainable Development Goals.
The United Nations Container Control Program instruments strive to facilitate the implementation of all United Nations Security Council resolutions related to the program's activities. The CCP has evolved over time and expanded into new thematic areas in accordance with various UN Security Council resolutions on emerging threats, including trafficking in cultural property (UNSCR 2199, 2322, 2347), CBRN materials, weapons and their means of delivery (UNSCR 1540), small arms and light weapons (UNSCR 2220), as well as the operation of the supply chain of goods intended for air transport (UNSCR 2309) and the situation in Afghanistan (UNSCR 1267 and 1988).
As the global economy becomes increasingly interconnected, business opportunities have spread throughout the world. Shipping lanes are the highways of international trade; more than 750 million twenty-foot equivalent unit (TEU) movements are recorded, accounting for 90% of global freight trade. However, this presents opportunities not only for governments and legitimate businesses, but also for terrorists and transnational organized crime groups to transport everything from legal goods used for money laundering, to illicit drugs and even materials for weapons of destruction in mass. These actors benefit from the large volume of global trade, as this makes it extremely difficult to effectively monitor less than two percent of shipping containers are ever checked.
Moreover, the rise of darknet technologies has allowed anyone to access crypto-markets that exploit standard postal and commercial shipping services. Finally, the challenge is compounded by the proliferation of sophisticated concealment measures, corruption, limited resources, complex and diverse port processes and systems, and a lack of trust and coordination between state agencies and private sector actors. Thus, this situation poses serious dangers to international security and the supply chain of international trade, which is vital for sustainable development.
"If the enemies of progress and human rights seek to exploit the openness and opportunities of globalization for their own purposes, then we must exploit the same factors to defend human rights and defeat the forces of crime, corruption and human trafficking."
The Customs Service continues the implementation of new programs in the Republic of Moldova, and here we cannot overlook the Container Control Program of the United Nations Office on Drugs and Crime (UNODC). This Program is implemented based on the Memorandum signed at the end of 2014, between the Customs Service, the Border Police of the Republic of Moldova and UNODC. This program aims to strengthen the capacities of law enforcement bodies, in order to secure the traffic of containers, to prevent fundamental crimes. For the year 2015, UNODC representatives together with the signatory authorities started the practical implementation stage of the Program, UNODC representatives visited Giurgiulești Port, where concrete actions were initiated according to the approved Plan. Thus, according to the Plan, a Joint Control Unit was created at Giurgiulești Port, made up of customs officials and border police officers. This unit was granted access to specialized information programs (ContainerComm, Cargo Targeting System) with container databases and risk analysis systems. These IT systems ensure the identification of containers with increased risk of fraud and the exchange of operational information between law enforcement bodies in order to coordinate actions at national and regional level. In this sense, training courses are held for responsible persons. At the same time, the Joint Control Unit was equipped with special control equipment, intended to detect and prevent the illicit trafficking of goods and drugs.
The Container Control Program was developed by the World Customs Organization and UNODC and is implemented with the extension of this program for Moldova, which is of particular importance in the context of the development of the Giurgiulesti International Free Port and the increase in the number of import, export and transit operations of goods in containers.
In 2018, the management of the Customs Service requested to increase the efficiency of container control by expanding the collaboration between it and the United Nations Office on Drugs and Crime (UNODC) within the Container Control Program, the regional coordinator of UNODC, Naida Chamilova. The Customs Service of Moldova refers to the expansion of the competence area of the joint intervention group, specialized in the control of containers. Currently, the established group operates only in Giurgiulesti PIL, but the institution is examining the opportunity of locating it in Chisinau and conferring the powers to control containers throughout the country, an ongoing action.
The program aims to optimize the preventive actions carried out in the Republic of Moldova regarding containers transported by sea and legal land in order to reduce the risk of their use in illicit activities, especially illicit drug trafficking, chemical precursors, smuggling of goods, tax evasion and potential terrorist acts.
Section 7. Interaction of the Customs Service with the authorities, agencies and stakeholders
General
The Customs Service of the Republic of Moldova is the national authority responsible for border control of strategic/dual-use goods.
The Customs Service of the Republic of Moldova controls the movement of controlled goods across the customs border and admits, exclusively on the basis of authorizations in the field of export control, re-export, import and transit of strategic goods, and is the authorized body for the implementation of the national legislation and the fulfillment of the international obligations of the Republic of Moldova. The legal basis of the customs activity to which these responsibilities are implied is the Customs Code of the Republic of Moldova.[8]
At the same time, it should be mentioned that the customs service in its field has signed protocol agreements and other understandings with various partners and countries for more intense cooperation.[9]
[8] https://www.legis.md/cautare/getResults?doc_id=136158&lang=ro#
[9] https://customs.gov.md/ro/articles/cooperare-vamala-internationala
7.1. Inter-Agency Cooperation
Interdepartmental commission
Considering the subject of the handbook one of the main cooperation in the segment of strategic control is the cooperation between the related institutions that are directly related to this matter. In this sense, as previously mentioned the Government Decision no. 606/2002, which establishes the Regulation of the interdepartmental control commission on the export, re-export, import and transit of strategic goods, is formed from members from the following institutions:
Each member of this commission has its own role, depending on the functions of the institution he or she represents. Inter-institutional communication here is intended to prevent, control and verify potentially dangerous transactions and to mitigate the risks of diversion both in export and import.
The functions of the commission are:
• examination of proposals regarding the signing or accession to interstate and intergovernmental agreements (at bilateral and multilateral level) in the field of non-proliferation of weapons of mass destruction and other strategic goods;
• carrying out control over compliance with the commitments assumed within the framework of interstate and intergovernmental agreements on non-proliferation and control over the trafficking of weapons of mass destruction and other strategic goods;
• examining and making decisions regarding the issuance of authorizations for export, re-export, import and transit of strategic goods on the territory of the Republic of Moldova;
• making decisions regarding the suspension or cancellation of the authorization for the export, re-export, import and transit of strategic goods in the event that the economic agent holding the authorization violated the provisions of the legislation in force in the respective field or arising from international commitments and state policy in the field of goods traffic control strategic.
The commission set up working groups with the participation of experts from other ministries and institutions to examine and prepare proposals for resolving issues related to the legal regulation of export control, re-export, import and transit of strategic goods.
Agency of Public Services (APS)
In order to obtain the individual authorization for export, re-export, import or transit of strategic goods, the applicant applies, on paper, in electronic format or through the single electronic counter for requesting permissive documents, to the body authorized by the Government (APS), containing the applicant's identification data and to which the necessary documents are attached.
The APS examines the application and the documents attached to it and forwards them to the Interdepartmental Commission for examination and making the appropriate decisions. In accordance with the decisions of the Commission, the APS will issue or refuse to issue the authorization for the export, re-export, import or transit of strategic goods and will notify the applicant of this authorization about the decision taken within 30 calendar days.
The term of validity of each export, re-export, import or transit authorization of strategic goods is determined by the interdepartmental Commission, based on the information presented by the applicant. (See in the annexes the samples of the authorizations and related documents)
National Agency for the Regulation of Nuclear and Radiological Activities (NARNRA)
Law no. 132/2012 on the Safe Development of Nuclear and Radiological Activities, the provisions of Article 3, applies to import, export, re-export and temporary admission or temporary export of sources of ionizing radiation, including nuclear material, nuclear fuel, and radioactive waste.
Article 4 of the Law defines:
· radiological authorization - permissive act issued for activities not exempted by the authorization regime because of the assessment of compliance and observance of the conditions of nuclear and /or radiological activities;
· partial radiological authorization - radiological authorization issued for a phase of nuclear or radiological activity in the established field and within the time interval.
Article 19 (c), d) of the Law establishes the authorization regime in the nuclear and radiological field and also refers to the import/export, temporary admission or temporary export of sources of ionizing radiation and radioactive sources.
According to the nor
mative acts, the applicant submits to NARNRA a request according to the model (Annex 6) and a file containing the necessary documents according to the type of activity (Annex 7). In accordance with the article 9 of the Law 1163/2000 the Customs Service allows import, export, re-export or transit of such goods on presentation of original authorizations (Annexes 13 - 20) issued by APS and accompanied by respective Radiological Authorization (Annex 9).
Article 18 of the Law no.132/2012 provides for the Customs Service to carry out the control, which allows the export, re-export, import and temporary admission or temporary export or transit of sources of ionizing radiation, equipment with ionizing radiation sources, nuclear or radioactive materials, as well as information pertinent to proliferation of nuclear weapons or other explosive nuclear devices, only at the presentation of the NARNRA authorization. Government Decision no.727/2014 regulates the authorization of the nuclear and radiological activities, for import, export, re-exports and transit operations on the authorization of nuclear and radiological activities.
Ministry of Foreign Affairs and European Integration
Through the communication and support of the Ministry of Foreign Affairs and European Integration, a list of actions is being undertaken. For instance, they are informing the customs of the current sanctions’ regimes of the UN Security Council,[10] that can be introduced (if its case) in the risk profiles. At the same time, they are the authority through it is promoted, negotiated or supported various initiatives for disarmament and non-proliferation of weapons of mass destruction.[11]
The European Union Border Assistance Mission to Moldova and Ukraine (EUBAM)[12]
The EUBAM mission works in the Republic of Moldova and Ukraine to:
· Promote European Union border management standards and procedures for a quicker crossing of people and goods;
· Enhance the professional capacities of the Moldovan and Ukrainian Customs and Border Authorities;
· Assist Moldovan and Ukrainian authorities in combating cross-border crime more efficiently;
· Act as a catalyst and bring together key stakeholders to strengthen cross-border cooperation between the border authorities and law enforcement agencies;
· Contribute to the peaceful settlement of the Transnistrian conflict.
Various agreements and cooperation with national institutions such as: Border Police, Public Services Agency, National Agency for Food Safety, State Tax Service, National Auto Transport Agency, Intelligence and Security Service, General Prosecutor's Office, Ministry of Foreign Affairs and European Integration, Ministry of Interior, Ministry of Economic Development and Digitization, National Bureau of Statistics.[13]
[10] https://mfa.gov.md/ro/content/masuri-restrictive-internationale
[11] https://mfa.gov.md/ro/content/neproliferarea-armelor-de-distrugere-masa
[12] https://eubam.org/ro/
[13] https://customs.gov.md/ro/articles/cooperare-interinstitutionala
The aim of the strategic trade control enforcement should be consisted of the following pylons:
7.2. Relationship of the customs authority with the stakeholders
a. Applicant and Customs representatives
The customs code defines the following:
Declarant – any person who has the right to dispose of goods and/or means of transport, who draws up the customs declaration in his name or in whose name the customs declaration is drawn up;
Direct representation – the report in which the customs broker acts in the name and on the account of another person;
Indirect representation – the report in which the customs broker acts in his own name, but on the account of another person;
A customs broker is a legal person, registered in accordance with the legislation, who holds a license for the activity of a customs broker, issued by the licensing body, and who, on the principles of direct or indirect representation, declares the goods, presents them for customs clearance, and performs other customs operations. For the customs obligation incurred, the customs broker is jointly and severally liable with the customs payer.
The relations between the customs broker and the person he represents are established on the basis of a contract, concluded in compliance with the requirements of the legislation in force, which shall provide, mandatorily, the type of representation. The mentioned contract is presented to the customs authorities at their request and justifies the powers of the customs broker to represent the declarant.
All goods that cross the customs border are subject to declaration by completing and submitting a detailed customs declaration by the representative in relations with the Customs Service.
b. Customs carrier
In accordance with the customs, code of Moldova the Customs carrier is defined - the person who de facto passes the goods across the customs border or who is responsible for using the means of transport.
When introducing goods and means of transport into the customs territory, the carrier notifies the customs authority about crossing the customs border. The customs body registers this notice and determines the time and place where the goods and means of transport must be brought to be cleared by customs.
About the removal of goods and means of transport from the Republic of Moldova, the person passing them informs the customs body in advance. It registers the notification and determines the time and place where the goods and means of transport must be brought to be cleared. If the person who passes the goods and the means of transport across the customs border does not notify the customs body, this obligation rests with the carrier.
The provisions of this article do not apply to sea, river and air transports that cross the customs territory without a stop in ports or airports on the territory of the Republic of Moldova.
After the notification recorded above, the carrier is obliged to present the goods, the means of transport and the accompanying documents at the place established by the customs body without changes, except for their normal wear and natural losses related to transportation and keeping them in good conditions, without using them in other purposes.
The goods, the means of transport and the accompanying documents are presented in the time set by the customs body, depending on the possibilities of the means of transport, the route and other conditions.
c. Authorized Economic Operator (AEO)
The AEO (Authorized Economic Operator) program is based on the partnership between customs and economic agents that voluntarily comply with customs regulations, ensure the security of goods in international traffic, cooperate with customs and, therefore, benefit from customs facilities and simplifications.
The AEO program aims to strengthen the security of the international supply chain and facilitate legitimate trade, being open to all participants in international trade.
There are two types of AEO authorizations:
AEOC – customs simplifications;
AEOS – security and safety.
Note: Both types of authorizations can be held at the same time, by issuing a combined authorization.
I. AEO benefits
Reduction in the number of documentary and physical controls, compared to other economic agents.
Priority treatment in case of selection for customs control.
The possibility of choosing the place for performing customs controls.
Facilitating access to customs simplifications – this advantage is provided by the AEOC.
Advance notification if the shipment has been selected for a customs control. The notification is made before the presentation of the goods to customs, but it is not made when it may compromise the results of the controls.
Extension of the term for payment of import duties (exception: fee for customs procedures) by up to 30 calendar days.
Crossing the border in a priority regime - without a queue and on a specially dedicated AEO lane (where the infrastructure of the customs posts allows this).
AEO authorization also provides other indirect benefits with a positive impact on the company's image. Thus, the AEO status denotes that the respective company is a reliable partner, both in relations with customs and with business partners, but also increases customer loyalty. Additionally, AEO has an improved planning system, minimizes the risk of thefts and losses, but also of delays in transports, thanks to the improvement of security and communication between the partners involved in the logistics chain.
Companies can apply the AEO logo, according to the approved model, on commercial documents or otherwise to inform their partners and customers that they hold this trusted status.
The logo is issued upon request, by submitting an application-declaration (.docx, .pdf) to the Customs Service.
Note: In the future, this list of facilities will be supplemented with the recognition of AEO in other states, which will provide customs advantages not only in the Republic of Moldova, but also in the countries with which the Republic of Moldova will conclude mutual recognition agreements of AEO.
II. Obtaining AEO status
AEO can be any economic agent from the Republic of Moldova involved in external economic transactions (importer, exporter, carrier, customs broker, holder of customs warehouses, manufacturer).
AEO status can be applied for by all large, small or medium-sized enterprises. At the same time, this status is also accessible to newly created companies, however, for the AEO no criterion is applied that would establish the minimum duration of activity in international trade.
In the preparatory stage, the economic agent must complete a Self-Assessment Questionnaire (.docx, .pdf). The questionnaire is submitted to the Head office of the Customs Service together with a typed application (.docx, .pdf), accompanied by documents confirming the following information.
• The names and surnames of the main owners/shareholders, of the members of the board of directors, as well as the addresses of the respective parties.
• Name, first name of the person responsible for customs in the applicant's company.
• Description of the economic activities of the applicant.
• Details of the applicant's business locations and a brief description of the activities at each location. Details of how the applicant and each location acts in the supply chain: in its own name and on its own account or in the name and on behalf of another person.
• Clarifications regarding the possible links between the applicant and the companies from which they buy or to which they supply products.
• Description of the internal organization of the applicant's company. Any documents regarding the functions/competencies of each department will be attached.
• The number of employees in total and of each department.
• The names of the main managers (general manager, heads of departments, administrators of accounting services, responsible for the customs field). Description of the internal procedures applied when a competent employee is absent, temporarily or permanently.
• The name and function of the persons who have specific competences in the customs field within the organization of the applicant's company. Evaluation of the level of knowledge of these persons regarding the use of IT tools in the customs field and regarding general matters of a commercial nature.
• Accepting or refusing to publish the information included in the AEO authorization in the list of authorized economic agents.
The Customs Service, within no more than 10 calendar days, verifies the information presented and informs the economic agent about the acceptance of the request. If it is found that the application does not contain all the necessary information, the Customs Service asks the applicant to provide the relevant information, within a deadline that does not exceed 30 calendar days from the date of receipt of the application.
The request and the attached documents are examined within 60 calendar days from the date of their acceptance. In well-founded and documented cases, the deadline can be extended by no more than 30 calendar days, with the applicant's information.
The AEO authorization is issued for an unlimited period.
In case of non-compliance with the authorization conditions, the authorization can be suspended or withdrawn.
The AEO authorization is suspended in the following cases:
• non-compliance with conditions for granting the status is found;
• the holder of the authorization requests said suspension, because he is temporarily unable to fulfill the conditions set out in the authorization or to comply with the obligations incumbent upon him through this authorization;
• there are sufficient reasons to consider that the AEO has committed a violation of customs legislation. In this case, the AEO status is suspended for the entire duration of the contravention process, in accordance with the provisions of the Customs Code of the Republic of Moldova and the Contravention Code of the Republic of Moldova, or for the entire duration of the criminal process, according to the Code of Criminal Procedure of the Republic of Moldova;
• unauthorized use of the AEO logo.
The AEO authorization is withdrawn in the following cases:
• The AEO with the suspended authorization did not undertake the necessary measures and did not liquidate the identified shortcomings to comply with the requirements until the expiration of the established suspension term;
• AEO committed a violation of customs legislation, and the sanction applied for it became irrevocable according to a legal procedure;
• at the request of the AEO;
• AEO uses the logo during the period of suspension of the AEO authorization.
a. Representative of the „White list”
By order of the customs service no. 592-O/28.12.2018 „Regarding the approval of the Methodology regarding the "White List"” aims at streamlining the traffic of goods within customs posts, reducing the number of ineffective controls, as well as reducing the level of control in low-risk customs transactions.
The white list presents a tool for customs posts that allow to direct internal resources to high-risk transactions and reduce the number of checks. The information regarding the "White List" and the economic operators found in it will be used strictly for official use, will be confidential and will not be communicated in any way to the economic operators concerned.
The "White List" is managed by the Risk Analysis Directorate within the Anti-Fraud and Compliance Department.
Eligibility criteria of economic operators to be included in the "White List":
· lack of debts towards the customs body;
· the number of customs declarations submitted as well as the value of the goods declared at the customs post within the scope of activity of the economic agent during a calendar year will be at least 50 customs declarations with a transaction value of over 1 million lei;
· import/export activities registered during the last 2 consecutive years;
· Lack of violations of customs legislation during the last year, including regarding the company's director, administrator;
· the economic agent does not hold AEO or PVD status;
· the history of transactions completed by the economic agent must be known at the customs post level.
Section 8. Liability for violation of customs rules and procedures
Violation of customs rules and responsibilities:
a) Confiscation, elimination, return of dual-use goods transported without permission;
b) Sanctions provided for in the Customs Code for procedures regarding customs offences.
c) Violations regarding export control provided for in the Criminal Code.
The object of this Section is liability for the violation of customs regulations that entails contravention liability or criminal liability. Therefore, we propose for your attention the brief description of contravention liability as well as criminal liability.
Customs contravention - means the violation of customs regulations committed through actions or inactions that attract responsibilities established in the Contravention and Customs Code of the Republic of Moldova. The customs contravention attracts administrative or material liability in accordance with the provisions of the Contravention and Customs Code of the Republic of Moldova. Contraventions in the customs field are reflected in art. 287 Criminal Code of the Republic of Moldova (with criminal liability) and in art. 231 Customs Code of the Republic of Moldova (with material liability).
Customs violations committed in customs premises and in places where operations are carried out under customs supervision are detected and sanctioned by the persons authorized by the customs authority. If the customs contraventions are found by the police or other bodies with control powers, in places other than those previously provided, they have the obligation to immediately present the ascertaining documents to the nearest customs authority, together with the goods that are the object of the contravention. After verifying that the deed falls within the customs regulations, the customs authority applies the fine and orders, as the case may be, the detention of the goods for confiscation, but we will refer to the details a little below. Contravention sanctions can also be applied to legal entities.
Another part of the object of this Section is the criminal liability stipulated in the Criminal Code of the Republic of Moldova no. 985 of 18.04.2002 in art. 14 which defines the notion of crime.
Crime - is a prejudicial act (action or inaction), provided by the criminal law, committed with guilt and liable to criminal punishment. Customs crimes, in a general sense, refer to those crimes that consist in the crossing of goods across the border through places other than those established for customs control, without authorization of weapons, ammunition, dual-use goods, explosive or radioactive materials, products and narcotic and psychotropic substances, precursors and essential chemical substances, toxic products and substances or, in free zones, goods whose import is prohibited on the territory of the Republic of Moldova with unreal or falsified customs transport or commercial documents. The content of the crimes in the customs field is equivalent to crossing the border of the customs state of the goods by removing them from the power of disposal of the customs authorities, in circumstances precisely and limitedly determined by the law. According to the rules in force in the customs field, the customs legal regime includes all the rules provided in the internal legislation that are applied in the customs clearance procedure, depending on the purpose of the commercial operation and the destination of the goods, elaborated and applied by the public authorities, according to their powers, in in accordance with the norms of international law, treaties, agreements, conventions and protocols concluded by the state of the Republic of Moldova with other states.
Currently, to the extent that man coexists in society, his behavior is subject to evaluation and reaction from it. The assessment of his behavior consists in comparing it with the model of conduct established by different categories of legal, social, moral, political norms, etc.
Compliance with these requirements of obedience to the law requires the establishment of rules of conduct in a well-defined legal framework, which configures the content of the various branches of law, including customs. Within this system that governs society, an important role is played by the legal norms, including contravention/criminal ones, which impose a certain behavior on the members of society in the relationships they establish with their peers or with social bodies, and the violation of which entails a certain form of legal liability for contravention of customs or even criminal law.
VIOLATION OF CUSTOMS RULES AND RESPONSIBILITIES
Confiscation, disposal, return of dual-use goods, transportation without permission
Confiscation
In order to deter criminal activities, it is essential that criminals are dispossessed of the proceeds of crime. Organized criminal groups create large-scale international networks and obtain substantial profits from various criminal activities, respectively, through money laundering, these products are reintroduced into the legal economic circuit.
However, the assets of criminal groups can also be identified with the help of financial information. To be effective, any attempt to prevent and combat crime must focus on identifying, tracking, freezing or seizing and confiscating the instruments and proceeds of crime.
Therefore, we will refer to the notion of: special confiscation and extended confiscation.
The special confiscation is regulated in art. 106 of the Criminal Code, being a security measure that consists in the forced and free transfer of the following assets (including foreign currency values) into the state's ownership;
Goods used or intended for the commission of a crime:
• constituted a means of committing the act (for example, the car used by the defendant to commit the crime of smuggling, the means of transporting illegal migrants, etc.);
• were used by the perpetrators to keep the connection in carrying out the criminal activity and to coordinate the criminal acts (for example, communication devices, technical means - laptops, computers, units of measurement).
It is irrelevant how the goods were used in the commission of the offense - in any way. The object of confiscation will be, for example, an asset that is not exclusively intended for the purpose of committing a crime, but, along with its legal purpose, is also used for this purpose, for example, a car used for legal transport activities, but in which, taking advantage of the legal burden, are hidden goods held against the legal provisions.
The measure of confiscation, in the situation presented, can only be taken in the case of intentional crimes, and not of those due to imprudence, in the latter situation it cannot be considered that the perpetrator used the respective asset to commit the crime.
The good must belong to the perpetrator or, if it belongs to another person, he must have known the purpose of its use. When the good belongs to the perpetrator, it is enough to establish that he used that good, in any way, to commit the act. If the asset is the property of another person and was used by the perpetrator when committing the crime, it must be established that that person knew the purpose of the use, without being in any way a participant in that act.
Assets resulting from crimes, as well as any income from the capitalization of these assets, respectively:
• which came into the property/possession of the perpetrator through the realization of the material element (for example, sums of money obtained by committing the crime of tax evasion, evasion, illegal income from the sale of drugs, weapons, dual-use goods from sexual exploitation, through work , from other illegal activities that generate profit);
• which replace the goods originally acquired by committing the act (objects bought with the money obtained by committing the crime).
In principle, goods in this category are confiscated to the extent that they are not returned to the injured person or in a position to serve to compensate him. These goods can be confiscated only if the injured person does not become a civil party or if the civil party waives compensation or when the injured party does not demand the restitution of the stolen goods or to be compensated by a monetary equivalent.
If the defendant used the stolen sums for the purchase of goods or the stolen goods were transformed into money, they will be confiscated under the same conditions, i.e. to the extent that they do not serve to compensate the civil party.
If the asset acquired through the commission of the crime was alienated to a bona fide acquirer, it cannot be confiscated, but the defendant is obliged to pay the amount obtained through the alienation of the asset subject to confiscation.
Confiscation of the consideration
If these goods no longer exist, cannot be found or cannot be recovered, their value is confiscated. If the assets resulting from crimes and the income from these assets have been merged with the legally acquired assets, that part of the assets or their equivalent value that corresponds to the value of the assets resulting from crimes and the income from these assets is confiscated. If the goods used or intended for the commission of a crime; those resulting from crimes, as well as any income from the capitalization of these goods belong to or were transferred onerous to a person who did not know and should not have known about the purpose of use or the origin of the goods, their value is confiscated.
The crimes provided for in art. 248, 2481, 2482 of the Criminal Code have as their material object - currency or other movable assets, which are used/acquired when committing the crime.
According to the provisions of art. 106 paragraph (2) of the Criminal Code, assets (including currency values) used or intended for the commission of a crime, resulting from crimes, as well as any income from the capitalization of these goods or data to determine the commission of a crime, are subject to special confiscation crimes or to reward the offender.
From the considerations set out above, if at the stage of the criminal investigation, for certain reasons, seizure was not applied to the assets used in the commission of the crime or of the defendant (in case of their existence), at the preparatory stage of the court session or starting with this (a good part of the mentioned cases are examined on the basis of art. 3641 Criminal Procedure Code), in order to execute the provisions mentioned above, the state prosecutor must initially accumulate information (including from the databases available to the prosecutor's office) related to the existence of movable assets , real estate and financial means owned by the defendant, and later request the court to apply the seizure on them in order to ensure the confiscation of the assets used/resulting from the commission of the crime.
In the same context, in the cases provided by art. 1061 of the Criminal Code, the state prosecutor is to ensure during the trial of the case measures for the application of the respective provisions that establish the forced and free transfer into the state property of certain assets, which belong to the person who committed a crime, due to their origin from criminal activities of the same nature, carried out by the respective person, constantly, for a certain period of time, prior to the crime for which they are convicted.
The confiscation orders
The special confiscation as a safety measure is ordered, as a rule, by the court decision convicting the perpetrator for committing a crime.
But the measure can be applied even if a criminal penalty is not imposed on the perpetrator. This is also ordered in the case when the court pronounces the termination of the criminal process on grounds of non-rehabilitation, noting the intervention of some reasoned cause (here would be the absence or withdrawal of the prior complaint, amnesty, the death of the perpetrator, reconciliation, intervention of the limitation period, etc.).
The special confiscation can be applied by the court also in the case when the person's criminal liability is replaced by the liability that attracts a contravention sanction, because even in this case there is a crime, only the punishment for it being replaced (from a criminal one to a contravention one, art.55 of the Criminal Code).
Confiscation is a measure applied in rem, respectively on assets related to the crime. For this reason, it is imprescriptible and is not affected by causes that lead to the termination of the criminal process or that remove criminal liability.
In the case of crimes committed through a press organ or any other means of mass information, the special confiscation does not apply.
Enforcement of the confiscation measure
The enforcement of the special confiscation measure is done based on the provisions of the Enforcement Code, by the bailiffs (art. 174 paragraph (5))
According to art. 293 of the Enforcement Code, the court that, based on art. 106 of the Criminal Code, ordered the confiscation of the goods used in the commission of the crime or resulting from the crime or their value, sends its decision to the bailiff in whose territorial competence, established of the territorial chamber of bailiffs, the assets are located.
The bailiff collects and transmits the assets subject to confiscation to the competent body, in the manner established by the Government. In case of confiscation of narcotic, psychotropic substances or precursors, weapons and ammunition, the bailiff collects them and sends them to the competent body.
About the lifting and transmission of the confiscated objects to the competent bodies, the bailiff informs the court that issued the decision, within 5 days.
In the execution process, if another person considers that the seizure for the execution of the confiscation has been applied to the goods belonging to him as property, he can file an action to lift the seizure in a contentious procedure (art. 164 of the Enforcement Code). If the seizure (inventory) of the assets was made on the basis of a criminal decision regarding the confiscation of the assets, the action to lift the seizure (deletion from the inventory act) is filed against the convicted person and the respective financial body, which will appear as the defendant.
The action to lift the seizure filed by third parties is examined in a contentious procedure under the terms of the Civil Procedure Code. The court decision can be appealed. The decision of the court of appeal is not subject to appeal, being final and irrevocable from the time it is pronounced.
In the same way, the regime of seized goods, including those that are administered by the Agency for the Recovery of Criminal Assets, upon the pronouncement of a final decision by the court, is to be regulated according to the provisions of the Regulation on the manner of recording, evaluation and sale of confiscated, ownerless, sequestered assets that can be easily altered or with a limited retention period, bodies of crimes, assets passed into the possession of the state with the right of succession and treasures, approved by Government Decision no. 972/2001.
The confiscated goods are capitalized by the State Fiscal Service.
The Agency for the Recovery of Criminal Assets ensures the unique record keeping of the information regarding the criminal assets in respect of which the seizure, special confiscation or extended confiscation was ordered, including by creating a specialized database in this regard.
Extended confiscation
While the special confiscation consists in the forced and free transfer into the state property of assets including currency values used in the commission of crimes or resulting from crimes, then the extended confiscation is also subject to other assets, which, although they were not used in the commission of the crimes, but their origin results from certain criminal activities.
This measure consists in the forced and free transfer into the state property of certain assets, which belong to the person who committed a crime, due to their origin from criminal activities of the same nature, carried out by that person, constantly, in a certain period of time, prior to the crime for which she is convicted.
This measure has a wider range of application, which allows the confiscation of assets other than those mentioned in art. 106 of the Criminal Code, such as: money and assets that cover the value of the assets subject to confiscation that are not found or have been merged with the assets legally acquired, as well as those money or assets obtained from the exploitation or use of the assets subject to confiscation, including those assets into which the assets derived from criminal activities were transformed or converted, as well as the income or benefits obtained from these assets.
In domestic law, extended confiscation is regulated as a security measure, thus as a criminal law sanction.
Extended confiscation was introduced by Law no. 326 of 23.12.2013, in force from 25.02.2014, when the Criminal Code was supplemented with a new article 1061.
Return of goods in case of prohibitions
The general principles of the passage of goods and means of transport across the customs border stipulate that all persons benefit from equal rights to import and export goods and means of transport from the Republic of Moldova, no one can be deprived of the right to import and export from the Republic of Moldova goods and means of transport or cannot be limited in this right, except for the cases provided by this code and other normative acts. But there are cases where the legislator imposes certain restrictions.
In accordance with the provisions of art. 20 paragraph (1) of the Customs Code of the Republic of Moldova, it stipulates that certain goods and means of transport are prohibited by law to be introduced or taken out of the Republic of Moldova for reasons of state security, ensuring order public and moral, protection of the environment, objects of art, objects of historical and archaeological value, protection of the right to intellectual property, protection of the internal market, protection of other interests of the Republic of Moldova. The goods and means of transport that fall under para. (1) they must be immediately removed from the Republic of Moldova or returned to the country if they are not subject to confiscation according to the legislation of the Republic of Moldova, the international agreements to which it is a party. The removal or return of goods and means of transport in the Republic of Moldova is carried out at the expense of the person who passes the goods across the customs border or at the expense of the carrier. If the goods and means of transport cannot be taken out or returned immediately to the customs territory, they are kept in temporary warehouses for a maximum of 3 days.
Additional Government Decision no. 1140 of 02.11.2005 for the approval of the "Regulation for the application of customs destinations provided by the Customs Code of the Republic of Moldova" in points 422-424 describes the return of goods and means of transport not cleared by customs.
Respectively, goods and means of transport not cleared by customs in the established manner and under customs supervision in control areas of the border customs bodies can be returned in compliance with the provisions of this Regulation. The return of the goods is carried out at the request of the authorized person regarding the goods or, in justified cases, at the initiative of the customs authorities. The return of the goods is perfected by the customs bodies by entering the respective mentions in the documents accompanying the goods or means of transport, as well as recording the operation in the appropriate registers. The customs declaration in this case is not submitted. In the case of goods transported with the use of transit documents provided for by the international agreements to which the Republic of Moldova is a party, registrations regarding the return are carried out in compliance with the procedure established by the respective agreements.
Conditions for the application of extended confiscation
The court orders extended confiscation if it has verified the fulfillment of several conditions:
The value of the assets acquired by the convicted person, in a period of 5 years before and, if necessary, after the moment of committing the crime, until the date of issuance of the act of referral to the court, clearly exceeds the income obtained by him in a lawful manner.
The application of the measure presupposes, respectively, the establishment of a time interval that starts five years before the date of the crime for which the conviction was ordered and ends on the date the indictment is issued.
In relation to this period, the total amount of lawful income acquired by the convicted person and the difference between this amount and the total assets acquired in the same period will be analyzed, in order to establish whether there is an obvious disproportion.
If by the time the proceeds of the crime have not been "reinvested" by the defendant and after the date of notification to the court, the defendant acquires new assets through third parties, they are not presumed to have been lawfully acquired, as their source may even be the advantage financially obtained following the commission of the crime for which he was sent to court.
If certain previously acquired assets are discovered after issuing the indictment, the court, at the request of the prosecutor, may institute precautionary measures, and these assets will be taken into account for the assessment of the apparent disproportion.
The court is convinced that the respective goods come from criminal activities of the nature provided for in art. 1061 paragraph (1) of the Criminal Code.
The scope of application of the measure was established by providing precisely the categories of crimes for which the institution of extended confiscation may be incident, provided that the deed was committed for material interest - if the person is convicted for committing the crimes provided for in articles 158 , 165, 206, 2081, 2082, 217–2174, 218–220, 236–240, 243, 248–253, 256, 2603, 2604, 279, 280, 283, 284, 290, 292, 302, 324 -329 , 3302, 332–3351 of the Criminal Code.
- Extended confiscation can be ordered regarding:
- the person who committed the crime and is convicted;
- a family member;
- legal entities over which the convicted person has control;
- to other people who knew or should have known about the illegal acquisition of goods.
When applying the extended confiscation, the value of the assets transferred to the latter by the convicted person or a third party will also be considered. If the goods subject to confiscation are not found or have been combined with the legally acquired goods, money and goods covering their value are confiscated in their place.
Assets and money obtained from the exploitation or use of the assets subject to confiscation are also confiscated, including the assets into which the assets derived from criminal activities were transformed or converted, as well as the income or benefits obtained from these assets. The confiscation cannot exceed the value of the goods acquired during the period indicated in art. 1061 of the Criminal Code, which exceeds the level of the lawful income of the convicted person.
The sanctions provided for in the Customs Code for procedures regarding customs contraventions.
Any form of legal liability, including customs contravention, objectively results from the commission of an illegal act that gives rise to the right of the state to apply the sanction provided for by the violated legal norm and the obligation of the perpetrator to bear the consequences of the act committed in accordance with the Customs Code of the Republic of Moldova or the Contravention one of the Republic of Moldova depending on the legal classification of the act committed.
Contravention liability is a specific form of legal liability, and non-compliance with the rules of contravention law has negative consequences both for citizens, in particular, and for society, in general. For these reasons, at the present moment, in the theory and practice of law, the problem of administrative liability in the field of Customs Law is perceived as a current one and with maximum difficulties.
In order to delimit customs contraventions depending on the form of liability, be it material or contravention, we propose to initially define the notion of contravention, and in this sense, the Contravention Code of the Republic of Moldova in art. 10 stipulates that the illegal act - action or inaction - constitutes a contravention, with a lower degree of social danger than the crime, committed culpably, which attacks the social values protected by law, is provided for by the Contravention Code and is subject to a contravention sanction.
The Romanian legal dictionary defines the contravention as the deed committed with guilt, which presents a lower social danger than the crime and is provided for and sanctioned as such by laws, decrees or by normative acts of the bodies shown in the law.
As a result of the description of the notions of contravention, I propose for your attention the definition of the customs contravention which according to art. 228 of the Customs Code of the Republic of Moldova means: - violation of customs regulations committed through actions or inactions that attract liabilities established in the Contravention Code of the Republic of Moldova and in the Customs Code of the Republic of Moldova. Thus, in order to establish the form of contravention liability in the customs field, we are of the opinion that contravention liability consists in the application by the authorized body of the sanction against the person who committed a contravention. The only legal basis for the application of contravention liability is the contravention committed with guilt.
Therefore, it should be underlined that contravention liability is a legal form of punishment for people who have committed a deed, action or inaction called a contravention, and are obliged to bear the contravention sanction established by the competent bodies.
Because of the identification of the notion and the elements of the contravention, of the contravention liability, it is proceeded to the direct analysis of the delimitation of the contravention that may attract contravention or material liability in accordance with the provisions of the Contravention and Customs Code of the Republic of Moldova. Thus, in order to delimit the contraventions in the customs field, it should be specified that they are reflected in art. 287 of the Criminal Code of the Republic of Moldova (with criminal liability) and at 231 of the Customs Code of the Republic of Moldova (with material liability).
Therefore, we can mention that the following customs contraventions are considered violations of customs regulations liable to material liability:
1) crossing the customs border of goods by evading customs control or concealing them;
2) the passage of goods across the customs border with forged, invalid or illegally acquired documents;
3) non-declaration, within the established terms, of the goods upon importation;
4) the transport, storage, procurement of goods introduced into the customs territory with the evasion of customs control or hidden from it, or with the use of false, undeclared or declared inauthentic documents or identification means, as well as the transport, storage, procurement of goods for which facilities are provided to the payment of import or export duties, to their use or alienation for purposes other than those for which the facilities were granted and without the authorization of the customs body;
5) non-compliance by the holder of the suspensive customs regime with the terms, obligations and conditions established for the development and termination of this regime;
6) submission of the customs declaration or the accompanying documents containing erroneous data about the customs regime, the invoiced value, the customs value, the type, the code, the quantity or the origin of the transported goods, if this fact leads to the total or partial exemption from import duties.
61) submission of the customs declaration or accompanying documents containing erroneous/incomplete data regarding intellectual property objects;
7) the presentation to the customs body of documents containing unauthentic data about the recognition of the right to the restitution of import or export rights collected, the receipt of sums and compensations, their non-restitution or their partial restitution without reason, in the absence of the constitutive elements of the crime;
8) non-payment of import or export rights within the established terms, in the absence of the constitutive elements of the crime;
9) putting the goods into circulation without the permission of the customs body, losing the goods and means of transport under customs supervision or not transporting them to the place indicated by the customs body; 10) loss or non-handover to the customs body of documents for goods under customs supervision;
11) non-fulfilment of the obligation to declare to the customs body the change in the destination of the goods compared to the declared purpose when placing the goods under a certain customs destination;
12) non-compliance with the requirements and conditions for destruction of goods and/or waste;
13) carrying out operations on the goods, their transformation, use and disposal in violation of the customs regime in which they were placed, except for the cases provided for by the Customs Code of the Republic of Moldova;
14) non-compliance with economic policy measures and other restrictions provided for the passage of goods across the customs border, except for the cases provided for by this code, in the absence of the constituent elements of the crime;
15) crossing the customs border of goods intended for trade or production under the category of goods not intended for trade or production, in the absence of the constitutive elements of the crime;
16) failure to ensure the integrity of the goods and means of transport in case of breakdown or force majeure, failure to inform immediately about the conditions, failure to ensure the transport of goods to the nearest customs post or failure to ensure the movement of the customs collaborator to the location of the goods and means of transport;
17) non-compliance with the obligation:
a) to remove from the customs territory the goods and means of transport previously introduced into the customs territory, if their removal is mandatory;
b) to return to the customs territory the goods and means of transport previously removed from the customs territory, if their return is mandatory;
18) the presentation to the customs body, as confirmation of the removal or introduction of the goods and means of transport in the customs territory, of some inauthentic documents regarding their removal or introduction, regarding the impossibility of carrying out these operations due to the destruction or loss of the goods and means of transport in as a result of damage or force majeure, due to wear and tear or losses incurred as a result of their transport or storage, in the absence of the constitutive elements of the crime;
19) alienation in any form of goods under the customs transit regime;
20) failure to ensure the release or reception conditions, in accordance with the customs regime, of the goods and means of transport whose term of storage in the warehouse has expired;
21) wholesale and retail sale of goods, including from auxiliary rooms and warehouses of duty-free shops, or retail sale in duty-free shops of prohibited goods to be brought into or taken out for sale from the customs territory of the Republic of Moldova , as well as other goods whose list is established in accordance with the law.
22) using and presenting false information about dual-use products, evading the presentation of the authorization for the import, export, re-export or transit of dual-use products, in cases where its presentation is mandatory, as well as the presentation of canceled or expired authorizations.
23) non-compliance with the transit procedure, which did not lead to the disappearance of goods in transit.
24) exercising the activity of a customs broker without holding the appropriate license (2, art. 231).
At the same time, it is necessary to establish that the following customs contraventions are considered a violation of customs regulations liable to criminal liability:
1) Failure to stop the vehicle crossing the state border of the Republic of Moldova in the place where the customs body is located, as well as starting, admitting the start without the authorization of the customs body of the vehicle (including the vehicle for personal use) under customs control.
2) Mooring of other floating constructions to the ship under customs control without the authorization of the customs authority.
3) Preventing the access of the person in charge of the customs body in the exercise of the function to the goods, objects and other values under customs control.
4) Failure to present to the customs body the necessary documents for the customs control of the goods, objects and other values under customs control, regardless of the presentation of the written declaration.
5) Failure to present the goods, objects and other values under customs control, transported from one customs body to another, as well as the customs documents and other documents on them within the deadline to the customs body.
6) Loading, unloading, transporting, repairing damaged packaging, packing, unpacking, repacking goods, objects and other values under customs control, changing identification or marking marks on them or on their packaging without the authorization of the customs body, as well as damage or loss of leads, stamps or other guarantees applied by the customs authority.
7) Release without the authorization of the customs body of goods, objects and other values under customs control or their loss.
8) Non-removal from the customs territory of the Republic of Moldova of goods, vehicles, objects and other values prohibited for introduction into the customs territory of the Republic of Moldova or introduced with the obligation to be removed from its customs territory or non-return of the goods to the customs territory of the Republic of Moldova, vehicles, objects and other values taken out with the obligation to be returned within the terms established in these obligations.
9) Non-removal from the customs territory of the Republic of Moldova of goods, objects and other values introduced with the purpose of being transited through its territory within the term established by the customs body.
10) Passing of the goods, objects and other valuables across the customs border of the Republic of Moldova by evading customs control or hiding them from him in places specially prepared or adapted for this purpose, or with the fraudulent use of documents or customs identification means, or by failing to stamp or making false declarations in customs documents or other border crossing documents, if these actions do not constitute a crime of smuggling or another crime.
11) Keeping, transporting or selling goods, objects and other valuables introduced into the customs territory of the Republic of Moldova by evading customs control or hiding them from it.
12) The use, without the authorization of the customs authorities, of the goods, objects and other values for which customs relief was granted for purposes other than those for which such relief was granted.
13) Non-payment of import and export rights on time, as well as other actions, the result of which is the full non-payment of customs duties.
14) Actions aimed at the illegal exemption from import and export rights or the reduction of these rights.
15) Actions aimed at restitution of collected import and export rights, receiving sums and compensations or not returning them without justification.
16) Disobeying the provisions or legal requirements of the responsible person in the customs body, insulting this person (1, art. 287).
As a result of the delimitation of customs contraventions, it is necessary to pay attention to the Recommendation of the SCJ regarding some aspects of the examination of customs contraventions by courts no. 64 of 01.04.2014, where the Criminal Board of the Supreme Court of Justice delimits the customs contraventions through the following explanations. The contravention process, in accordance with the provisions of art. 374 of the Contravention Code is an activity carried out by the competent authority with the aim of detecting the contravention, examining and resolving the contravention case.
As for the extension of the attributions in the matter of contravention law, the provision of art. 403 para. (1) The contravention code exhaustively identifies the contraventions whose detection/examination is up to the customs authorities. Taking into account the provisions of the noted rule, contraventions in the customs field art. 79 paragraph (3), art. 265, 287, 2871, 2872 are examined by the Customs Service.
An essential difference between the two forms of customs contravention is also the method of sanctioning. Thus, in the case of customs contraventions with contravention liability, the sanction is applied in the form of the conventional units established by the corresponding paragraph of the committed act which is provided by art. 287 Criminal Code of the Republic of Moldova. In the case of the customs contravention with material liability, art. 232 of the Customs Code of the Republic of Moldova, which provides that legal persons or persons carrying out entrepreneurial activity without establishing themselves as a legal person, for committing the customs contraventions provided for in: a) art. 231 point 1), 2), 4), 5 ) and 19), are sanctioned with a fine from 40% to 100% of the value of the goods that were the object of the contravention or with their confiscation; b) art.231 point 3), are sanctioned with a fine from 4% to 10% of the value of goods not declared within the established terms; b1) art. 231 point 6) are sanctioned with a fine from 40% to 100% of the value of the object of the contravention or with the confiscation of the goods that were the object of the contravention, and in the case of finding the contravention by the customs body, following the subsequent control, for the customs declarations distributed on the yellow or red customs control lanes and which were automatically validated with the granting of customs clearance, with a fine of 4% of the value of the object of the contravention; c) art. 231 points 9) and 11), are sanctioned with a fine from 10% to 20% of the value of the goods that were the object of the contravention, with or without the withdrawal of the authorization, and in case of finding by the customs body, following the subsequent control of the contravention provided for in point 11) for the customs declarations assigned to the yellow or red customs control lanes and which were automatically validated with the granting of customs clearance, with a fine of 4% of the value of the goods that constituted the object of the contravention; d) art. 231 point 61) and 7), are sanctioned with a fine from 10% to 20% of the value of the goods for which documents containing inauthentic data were presented; e) in art. 231 point 8), are sanctioned with a fine from 10% to 20% of the value of the goods for which the import or export rights have not been paid; f) art. 231 point 10), are sanctioned with a fine from 3% to 10% of the value of goods and means of transport whose documents were lost or not delivered; g) art. 231 points 12), 13), 16) and 22) are sanctioned with a fine from 5% to 20% of the value of the goods, objects that constituted the object of the contravention; h) art. 231 point 14), 15), 17), 18), 20), 21), are sanctioned with a fine from 10% to 100% of the value of the goods and other goods that were the object of the contravention, with or without withdrawal of authorization. i) art.231 point 23), are sanctioned with a fine of 3% of the value of the goods. j) art. 231 point 24) are fined from 0.1% to 0.5% of the amount established in art. 163 para. (2) lit. c) [2, art. 232].
A similarity between customs contraventions, both with contravention and material liability, constitutes the limitation period, which according to art. 2291 and 2292 Customs Code of the Republic of Moldova constitutes 1 year, or art. 2291 of the Customs Code of the Republic of Moldova stipulates "Prescription of contravention liability is provided for in art. 30 of the Contravention Code of the Republic of Moldova" and thus, art. 30 of the Contravention Code of the Republic of Moldova identifies that the prescription removes contravention liability and the general term of prescription of contravention liability is for one year [1, art. 30]. With similar provisions comes the Customs Code of the Republic of Moldova in the case of the prescription of the customs contravention with material liability where in art. 2292 provides that the prescription removes material liability and the limitation period for material liability is 1 year [1, art. 2292 ]. We consider it important to also mention that if the person, until the initiation of the subsequent control, for the customs declarations assigned to the yellow or red customs control lanes and which were automatically validated with the granting of customs clearance, communicates on his own initiative, in writing to the body customs on the commission of customs offenses provided for in art. 231 point 6) and point 11), with the annexation of the supporting documents, it is released from material and contravention liability, on the condition of the indisputable and voluntary payment of the due import rights and the calculated penalties.
Heads of customs offices and posts and their deputies, as well as heads of mobile teams of the Customs Service, have the right to examine contravention cases and apply sanctions.
Export control violations provided for in the Criminal Code.
Further, part of the object of this Section is the criminal liability stipulated in the Criminal Code of the Republic of Moldova no. 985 of 18.04.2002, namely by art. 14 the law defines the notion of crime as:
Crime - is a prejudicial act (action or inaction), provided by the criminal law, committed with guilt and liable to criminal punishment.
The end of the 20th century, marked by the fall of communism, also meant the beginning of the process of raising the iron curtain, interposed between the two world systems, capitalism and communism. These phenomena favored the emergence and evolution of the globalization process and, as a consequence, the establishment and application of the principles of a new world order, but, on the other hand, they also meant a kind of opening of a Pandora's box, leaving a free way for some threats slipped from under the corset of vanished bipolarism.
Against the background of these profound transformations, but also of many others, which we no longer remember, new phenomena appeared, amplified and diversified, such as organized crime, illicit drug trafficking, trafficking of explosive, chemical materials , radioactive, dual-use goods, terrorism, informational aggression accompanied by crime in this field, as well as many such manifestations, which hinder the peaceful processes of progress of nations, affect the peace and safety of citizens.
According to a generally accepted definition, smuggling consists of the clandestine passage across the border of goods prohibited or evaded from payment of customs duties, being one of the main forms of fraud at the level of the European Union as well as in the Republic of Moldova. In order to avoid paying the customs duties due when the goods enter the territory of the Republic of Moldova, the persons in question resort either to actual smuggling or to evading customs transit procedures. In this context, the Republic of Moldova with aspirations of EU integration, through international conventions also assuming a series of obligations regarding the repression or control of traffic with certain goods, is directly responsible for the prevention, discovery and sanctioning of crimes in the customs regime, known crimes, often, in connection with money laundering, the financing of acts of terrorism and organized crime.
According to art. 268 of the Criminal Procedure Code, the prosecution of the crimes provided for in art. 248, art. 2481, art. 2482 and art. 249 of the Criminal Code is the competence of the criminal investigation body of the Customs Service.
Article 248 of the Criminal Code stipulates the notion of smuggling, namely:
Smuggling constitutes, in accordance with the legal text, the introduction or removal from the country, by any means, of goods or merchandise, through places other than those established for the customs control of goods or other goods. At the same time, the legislator defines in Article 224 of the Customs Code the notion of Contraband, contraband is considered to be the criminal act for which criminal liability is provided in accordance with the provisions of the Criminal Code.
The action or inaction which, although, formally, contains the signs of a fact provided by this code, but, being unimportant, does not present the prejudicial degree of a crime does not constitute a crime. The prejudicial degree of the crime is determined according to the signs that characterize the elements of the crime: the object, the objective side, the subject and the subjective side. Depending on the nature and degree of prejudice, the offenses provided by the criminal code are classified in the following categories: light, less serious, serious, particularly serious and exceptionally serious.
Responsible natural persons who, at the time of committing the crime, have reached the age of 16 are liable to criminal liability.
The state's obligation is to criminalize and combat customs crimes, mainly smuggling, also derives from the provisions of international normative acts to which the Republic of Moldova is a party, to which it has acceded or ratified, based on which the state assumed its obligation to ensure the rights and freedoms of all persons, regardless of citizenship or nationality, in its customs territory, including the elimination of the risk of any harm caused by the commission of the crime of smuggling. In particular, lit. b) paragraph (1) art. 16 of the Association Agreement between the European Union and the European Atomic Energy Community and its member states, on the one hand, and the Republic of Moldova, on the other, it is established, among other things, that the parties they will cooperate in preventing and combating the smuggling of goods, including small arms and drugs.
Smuggling constitutes, in accordance with the legal text, the introduction or removal from the country, by any means, of goods or merchandise, through places other than those established for the customs control of goods or other goods. In the assimilated version, the crime of smuggling is also:
a) disposal or release into free circulation, without payment of import duties, of goods under customs supervision, if the value of the goods is greater than 8000 conventional units;
b) removing the goods from the territory of the country by falsely declaring the origin of the goods as having been obtained entirely in the Republic of Moldova, if their value is greater than 8000 conventional units;
c) the introduction into/out of the country of cultural values, both through places established for customs control, and through places other than those established for customs control, by hiding in places specially prepared or adapted for this purpose, or with the fraudulent use of documents or means of customs identification, or by non-declaration or inauthentic declaration in the customs documents, as well as the non-return of cultural values to the territory of the country if their return is mandatory;
d) introduction into/out of the country, both through places established for customs control, and through places other than those established for customs control, by hiding in places specially prepared or adapted for this purpose, or by fraudulent use of documents or means of customs identification, or by non-declaration or inauthentic declaration in customs documents, of drugs, precursors, ethnobotanicals or their analogues, of toxic and noxious substances, of weapons and ammunition prohibited in the civilian circuit or subject to authorization, of the essential components of firearms, of strategic goods, military devices, explosive, nuclear or radioactive materials;
e) the introduction into/out of the country of goods subject to excise duties, through places established for customs control, by hiding from customs control, by hiding in places specially prepared or adapted for this purpose, or with the fraudulent use of documents or means of customs identification , or by non-declaration or inauthentic declaration in the customs documents or in other border crossing documents, if the value of the goods is greater than 4000 conventional units, and in the case of cigarettes with or without a filter – a quantity greater than 60,000 pieces;
f) the introduction into/out of the country of goods subject to excise duties, through places other than those established for customs control, if their value is greater than 2000 conventional units, and in the case of cigarettes with or without a filter - a greater amount of 30000 pieces;
g) alienation or putting into free circulation without payment of import duties of excise goods under customs supervision, if their value is greater than 4,000 conventional units, and in the case of cigarettes with or without a filter - a quantity greater than 60,000 pieces.
The special legal object of the crimes provided for in art. 248 of the Criminal Code is formed by social relations regarding the customs security of the Republic of Moldova.
In the case of the crimes specified in paragraphs (5) and (6) of art. 248 of the Criminal Code, it affects, on a secondary level, social relations regarding the legal circulation of cultural values, drugs, precursors, ethnobotanicals or their analogues, of toxic or harmful substances, weapons or ammunition prohibited in the civilian circuit or subject to authorization, essential components of firearms, strategic goods, military devices, explosive, nuclear or radioactive materials.
In such cases, social values located on a secondary level (and related social relations) constitute the secondary legal object of the crimes provided for in paragraphs (5) and (6) of art. 248 of the Criminal Code. In the analyzed conditions, the special legal object of these crimes has a multiple character.
The material (immaterial) object of the crimes specified in art. 248 of the Criminal Code is to be examined according to the concrete version under which the contraband appears.
Thus, in the case of the offenses provided for in paragraphs (1), (2) and (4) of art. 248 of the Criminal Code, the tangible (immaterial) object is the goods (except for those mentioned in paragraphs (3), (5) and (6) art. 248 of the Criminal Code).
According to point 1) art. 1 of the Customs Code, by "goods" is meant "any movable property: objects and other values, including currency values (foreign currency and national currency in cash, payment instruments and materialized securities expressed in foreign currency and national currency), natural gas, electricity, thermal energy, other types of energy, as well as means of transport (which are the subject of an external economic transaction), except for those provided for in point 4)".
To be able to constitute the material (immaterial) object of the crimes provided for in paragraphs (1), (2) and (4) of art. 248 of the Criminal Code, the goods must have a value that exceeds: 8000 conventional units (in the case crimes specified in paragraphs (1) and (4)); 4000 conventional units (in the case of the offense provided for in paragraph (2)). If the value of these goods does not exceed 8000/4000 conventional units, then those committed are subject to qualification according to paragraph (10) or (101) art. 287 of the Criminal Code.
In the case of the crimes specified in para. (1), (2) and (4) art. 248 of the Criminal Code, it is essential that the value of the goods, which constitute the material (immaterial) object of the crime, does not exceed 16,000 conventional units. Otherwise, liability will apply for the offense provided for in letter c) paragraph (7) art. 248 of the Criminal Code.
The material (immaterial) object of the other crimes provided for in art. 248 of the Criminal Code is alternatively represented by:
a) goods under customs supervision, if their value is greater than 8,000 conventional units (in the case of the offense provided for in paragraph (3));
b) b) cultural values (in the case of the offense provided for in paragraph (5)).
c) c) drugs, precursors, ethnobotanicals or their analogues, toxic or harmful substances, weapons or ammunition prohibited in the civilian circuit or subject to authorization, essential components of firearms, strategic goods, military devices, explosive, nuclear or radioactive materials (in the case of the offense provided for in paragraph (6)).
And here we will stop in more detail because it is the subject addressed in this chapter. A first notion used in paragraph (6) art. 248 of the Criminal Code - "weapons or ammunition prohibited in the civil circuit or subject to authorization".
According to art. 2 of Law no. 130 of 08.06.2012 on the regime of weapons and ammunition for civilian use (hereinafter - Law no. 130/2012), by "weapon" is meant "the object or device, designed or adapted, by which a lead, a bullet or another projectile or a gaseous, liquid or other noxious substance can be discharged with the help of an explosive, gaseous or atmospheric pressure or by means of other propellant agents, to the extent that it is found in one of the categories provided in annex no. 1"; "ammunition" means "the assembly consisting of the cartridge tube, the propellant charge, the firing pin and, where applicable, the projectile".
According to the same article, "prohibited weapons and ammunition" are "arms and ammunition in category A, according to annex no. 1, the procurement, possession, carrying and use of which are prohibited for natural and legal persons".
As for the weapons subject to authorization, they represent Category B, according to annex no. 1 to Law no. 130/2012.
Weapons that, according to annex no. 1 to Law no. 130/2012, represent Category C "Weapons that are the subject of the declaration" and Category D do not constitute the material object of the crime, provided for in paragraph (6) of art. 248 of the Criminal Code "Other weapons not subject to authorization".
In art. 2 of Law no. 130/2012, the enumerative definition of another notion is formulated which is referred to in para. (6) art. 248 CP RM: "essential component of a firearm - closing mechanism, chamber of the cartridge and/or barrel of the firearm which, as separate objects, are included in the category of firearms on which they are mounted or are designed to be mounted".
In other words, the definition of the notion of "strategic goods" is formulated in art. 13417: "a) products, technologies and services that have dual use (civilian and military); b) armaments, ammunition, military equipment, technologies and related services; c) products, technologies and services that are used in the manufacture and use of nuclear, chemical, biological weapons and missiles that can carry such weapons; d) other products, technologies and services that require special control in the interest of national security or foreign policy, in accordance with international agreements and arrangements to which the Republic of Moldova is a party".
The following notion used in para. (6) art. 248 of the Criminal Code - "military devices" - is defined in art. 4 of Law no. 147 of 14.07.2017 on the regime of conventional weapons and ammunition, special means and military devices owned by the National Army and foreign military forces legally located on the territory of the Republic of Moldova: "the assembly of components whose joint operation fulfills a function in a technical system, through the actuation of an initiation or percussion mechanism, which causes the throwing of one or more projectiles, explosive, lit or luminous substances, incendiary mixtures or the spreading of harmful, irritating or neutralizing gases". The exhaustive list of military devices is presented in the Order of the Ministry of Defense no. 34 of 22.01.2019 regarding the approval of the Nomenclature of conventional armaments and ammunition, military devices and special means.
The notion of "explosive materials" is another notion used in paragraph (6) art. 248 of the Criminal Code.
According to letter a) point 3 of annex no. 1 to Government Decision no. 138 of 10.02.2009 regarding the approval of technical regulations, explosives are considered "materials and articles considered to be explosive in the United Nations Recommendations on the transport of dangerous products and which falls into class 1 of these recommendations". Substances and articles considered to be explosive are described in Vol. I of the United Nations Recommendations on the Transport of Dangerous Goods.
The notion of "nuclear material" is defined in art. 1348 of the Criminal Code: "(1) Nuclear material means: plutonium, with the exception of plutonium whose concentration of isotopes in plutonium 238 exceeds 80%; uranium 233; uranium enriched in uranium 235 or 233; uranium containing the mixture of isotopes found in nature other than in the form of ore or ore residue; any material containing one or more of the elements mentioned in this paragraph. (2) Uranium enriched in uranium 235 or uranium 233 means uranium that contains either uranium 235 or uranium 233, or these two isotopes in such a quantity that the ratio between the sum of these two isotopes and the isotope 238 is higher than the ratio between isotope 235 and isotope 238 from natural uranium".
Finally, the notion of "radioactive material" is defined in art. 4 of Law no. 132 of 08.06.2012 on the safe conduct of nuclear and radiological activities:
- "radioactive material - any material, in any state of aggregation, that presents the phenomenon of radioactivity, including radioactive waste";
- "radioactive waste - the materials, articles, installations, any type of objects in any form that contain or are contaminated with radionuclides in concentrations higher than the exclusion limits and for which no further use has been and will not be foreseen".
It should be specified that the entities, which constitute the material or immaterial object of the crime provided for in paragraph (6) of art. 248 of the Criminal Code, are not goods within the meaning of paragraphs (1)-(4) of art. 248 of the Criminal Code, of point 1) art. 1 of the Customs Code and letter f) art. 2 of Law no. 1569/2002. In the case of such entities, the special quality of the material or immaterial object of the crime is exclusively relevant. Due to this fact, regardless of the monetary value of the respective entities, only para. (6) art. 248 of the Criminal Code.
The objective side of the crimes, provided for in art. 248 CP RM, has a different structure and/or different content.
Thus, in the case of the crime specified in paragraph (1) of art. 248 of the Criminal Code, the objective side includes the following three signs:
1) the prejudicial act which consists in the action of introducing or removing goods from the territory of the Republic of Moldova;
2) the place of commission of the crime – the places established for customs control;
3) the methods of committing the crime:
a) hiding from customs control;
b) hiding in places specially prepared or adapted for this purpose;
c) fraudulent use of documents or means of customs identification;
d) non-declaration;
e) inauthentic declaration in customs documents or other border crossing documents.
Arising from point 5) art.1 of the Customs Code, the action of introducing or removing goods from the territory of the Republic of Moldova can be carried out including through international postal shipments, through pipelines or through electric transmission lines.
We mention that, in the sense of para. (1) art. 248 of the Criminal Code, the introduction into or removal from the territory of the Republic of Moldova of goods is an eminently illegal action. Violation of export or import rules is not considered, when, in general, the perpetrator acts within the "field of legality". Thus, for example, the violation of the rules established for the import or export of drugs or of materials or equipment intended for the production or processing of drugs, which caused their loss, committed by the person whose obligations include compliance with the mentioned rules, attracts liability according to para. (4 ) art. 218 of the Criminal Code. Also, violating the established rules regarding the import or export of radioactive, bacteriological or toxic substances, materials and waste, as well as pesticides, herbicides or other chemical substances, if this creates the danger of causing essential damage to the health of the population or the environment, is criminalized to art. 224 of the Criminal Code. Liability for the violation of export or import rules is also established in paragraph (2) art.140, paragraph (1) art.142, paragraph (9) art.154, paragraph (12) art. 196, art. 262 or others of the Criminal Code. In such cases, the subject of the act can only be the person whose obligations include compliance with the import or export rules. In contrast, in the case of the crime specified in para. (1) art. 248 of the Criminal Code, it is not indispensable for the subject of the crime to have such a special quality.
As for the place of commission of the offense provided for in paragraph (1) art. 248 of the Criminal Code, in accordance with art. 26 of the Customs Code, "the passage of goods and means of transport across the customs border is allowed only in the places established by the customs body and during his schedule" (para. (1)); "with the consent of the customs body, the passage of goods and means of transport across the customs border can be carried out in other places and during extra hours" (para. (2)).
With regard to the methods of committing the crime specified in paragraph (1) art. 248 of the Criminal Code, by "hiding from customs control" is meant the non-presentation for customs control of goods that cross the customs border of the Republic of Moldova, on a way that prevents their examination and detection, but otherwise than by hiding in places specially prepared or adapted for this purpose.
By "hiding in places specially prepared or adapted for this purpose" is meant the non-presentation for customs control of goods that cross the customs border of the Republic of Moldova, by using the hidden places of the body, clothes, personal items, reused places or accommodated in means of transport as hiding places, etc.
By "fraudulent use of documents or means of customs identification" it is considered that the perpetrator uses, as means (instruments) of committing the crime: a) false documents (including documents that refer to goods other than those that are in reality accompanied by such documents); b) invalid documents; c) documents obtained illegally; d) false customs identification means (including customs identification means that refer to goods other than those that were actually identified with the means in question).
In the examined context, "documents" must be understood, as the case may be: a) customs documents (customs declaration, certificate of origin of the goods, invoice, account-invoice, etc.); b) other border crossing documents, which accompany the goods passed over the customs border of the Republic of Moldova (for example, the registration certificate of the means of transport).
By "means of customs identification" we mean any non-documentary sources of information regarding the qualitative and quantitative characteristics of the goods passed over the customs border of the Republic of Moldova: seals, stamps; textual, numerical or other marking, identification signs; proofs and samples of the goods; description of goods; sketches, images, photos, illustrations, etc. of goods etc.
"Non-declaration" means not including in the customs declaration the information about the goods that had to be declared compulsorily. The order and manner of declaration are established by Section 27 of Chapter IV of the Customs Code.
"False declaration" means the introduction of false information in the customs declaration.
The subject of the crimes analyzed is: 1) the responsible natural person who, at the time of committing the crime, reached the age of 16; 2) the legal person (except the public authority).
In the case of the offense provided for in paragraph (3) art. 248 of the Criminal Code, the subject can only be the person who has the obligation to pay the import duties on the goods under customs supervision, an obligation established by art. 1274 of the Customs Code.
In another register, regarding the aggravating circumstance recorded in letter a) paragraph (7) art. 248 of the Criminal Code - "by two or more persons".
Next, we will analyze the aggravating circumstance recorded in letter b) paragraph (7) art. 248 HP RM.
In this case, the subject of the crime is, as the case may be:
1) the responsible person;
2) the person who manages a commercial, public or other non-state organization.
Persons who do not possess such special qualities, but who took part in the commission of the crime together with the above-mentioned special subjects, must answer not as co-authors, but as organizers, instigators or accomplices of the crime provided for in letter b) paragraph (7) art. 248 of the Criminal Code of the Republic of Moldova.
In the sense of the provision from letter b) paragraph (7) art. 248 of the Criminal Code, by "using the service situation" is meant the commission of actions or inactions that arise from the work duties of the perpetrator and which are within the limits of his service competence. The use of the service situation can be expressed in the use, as the case may be, of: 1) information held by virtue of the service competence; 2) the meaning and authority of the position held; 3) hierarchical subordination to other persons, etc. At the same time, the notion of "use of the service situation" does not include the use of kinship, affinity or friendship relationships, when they are not related to the position held.
The subjective side of the offenses provided for in art. 248 of the Criminal Code is characterized by direct intent. Most often, the reason for these crimes lies in material interest. However, the presence of other reasons is not excluded: the intent of the perpetrator to ensure his own drug consumption; his intention to facilitate the commission of other crimes (for example, when the material object of the crime is: weapons or ammunition prohibited in the civilian circuit or subject to authorization; essential components of firearms; military devices; explosive, nuclear or radioactive materials, etc).
The preliminary actions in the documentation of crimes are expressed by:
1) working mechanisms based on risk management, post-clearance audit, information systems that work online, which allow the rapid identification of cross-border criminal networks;
2) unlimited access to the customs control area, unlike other legal bodies for which access to the respective area is limited by the normative acts in force;
3) the possibility of receiving operatively from the customs bodies of neighboring states the necessary information regarding dubious external economic transactions.
In order to ensure compliance with customs legislation, to prevent fraud, the detection bodies apply various customs control procedures and tools.
Goods and means of transport are subject to selective customs control. Selectivity provides that the customs authority uses, based on the risk analysis, those forms of control that are sufficient to ensure compliance with the legislation.
Thus, in the customs clearance process, customs control is applied according to the degree of risk determined by the "ASYCUDA World" information system, which leads to directing customs declarations to one of the customs control lanes (green, blue, yellow or red):
- the green corridor – the granting of customs clearance without performing documentary and physical control;
- the blue corridor – the granting of customs clearance without performing the documentary and physical control, with the subsequent control being performed based on the principle of selectivity through the reverification of the customs declaration;
- the yellow aisle – performing the documentary control, without performing the physical control;
- the red aisle - performing the documentary and physical control.
I. Document control
When performing the documentary control, the documents attached to the customs declaration are checked (at least the following mandatory documents: 1) the invoice; 2) transport documents; 3) permissive documents, necessary for granting customs clearance). At the same time, other documents can be additionally requested that confirm all the data indicated in the customs declaration and which are necessary for the granting of customs clearance.
The documentary control consists in verifying: the correctness of completing the customs declaration in detail; the existence of the documents attached to the customs declaration in detail, according to the requested customs destination; the agreement between the data entered in the customs declaration and those in the attached documents; the form of the attached documents.
II. Physical control
Physical control consists in checking goods and means of transport with the aim of confirming information about the nature, origin, condition and quantity of the goods, the condition of seals, stamps and other means of identification.
Physical control can be carried out by: identifying goods, counting seats or parcels, weighing, measuring, photographing, taking samples and samples, applying special customs control equipment and other control tools in order to confirm the data indicated in the customs declaration and/or in the accompanying documents.
The customs authority can apply the following types of physical customs control of goods:
- partial (with the verification of a part of the cargo lot, sufficient to ensure compliance with customs legislation);
- total (with verification of the entire cargo lot). It applies, in particular, in situations where there are solid indications of non-compliance with the customs legislation in force or when the selectivity criterion expressly indicates the need to check the entire batch of goods, as well as in cases where, based on the risk analysis, it has been established that a partial control will not be sufficient to ensure compliance with customs legislation;
- carried out in order to take samples and samples for the research (expertise) of the goods.
The declarant and other holders of rights over goods and means of transport, as well as their representatives, are obliged to assist in the control of goods and means of transport and to help the customs authority in carrying out the control.
The declarant or his representative is obliged, at the request of the customs body, to handle, unpack and repack the goods, without causing their degradation. The expenses related to these operations will be covered by the declarant.
If the declarant does not appear within 10 days from the presentation of the goods or the control cannot be postponed for security reasons or due to other circumstances that cannot be postponed, the customs will carry out the control in the absence of the declarant, but in the presence of persons not interested in the result the control.
When carrying out customs control, technical means of control can be applied that do not pose any danger to the health and life of people, animals and plants and that do not cause damage to goods and means of transport. Customs has an arsenal of non-intrusive customs control equipment (scanners, located at the car border posts, at the airport and, in the near future, at the railway).
Customs also has customs laboratories, including mobile laboratories, which are used for the purpose of physical-chemical analysis of the goods, necessary to verify the correctness of the goods declaration. The customs laboratory is accredited for several tests and specializes in the fields of textiles, alcohol, petroleum products, food products.
The customs control is carried out in no more than 5 calendar days from the moment of receipt of the declaration and the information necessary for the customs control or, in case of physical control, from the moment of their presentation to the customs authority. For goods required in case of natural calamity, catastrophe or accident, as well as in the case of live animals, easily perishable goods, radioactive substances, mass information materials, the duration of customs control is limited to 3 days.
III. Subsequent control (post-clearance audit and reverification of customs declarations)
The subsequent control activity can be carried out by post-clearance audit or by re-verification of customs declarations.
The main objectives of the subsequent control are:
- to help operators to overcome system errors and any deficiencies in understanding customs regulations;
- to verify the correctness and completeness of the data entered in the customs declarations; to verify whether the obligation to declare the goods or to provide information has been fully complied with; to check whether the regulations related to customs regimes have been correctly applied;
- to identify errors, detect violations of regulations or cases of fraud.
The investigation of smuggling crimes often goes beyond the borders of the state, having a transnational character.
In this sense, Chapter IX of the Code of Criminal Procedure and Law no. 371/2006 on international legal assistance in criminal matters, regulate the institution of international legal assistance in criminal matters and, in particular, the request for rogatory commission, as being the most used form.
In order to effectively investigate smuggling crimes, the emphasis is placed on collaboration with other institutions, which becomes essential for solving cases.
Thus, the institutions within the public administration authorities are repositories of data, information and documents that can contribute to the criminal investigation in order to establish the circumstances and resolve the case in all aspects.
Government institutions can provide useful information about the persons under investigation, their relatives, associated persons and companies, finally they can help to identify assets and potential witnesses, as well as to draw up a thematic and financial profile.
In conclusion, we can mention that smuggling is one of the most serious acts likely to be committed in the sphere of customs legal relations, because, by committing it, social values of maximum importance for public order and, accordingly, for the legitimate and legal interests of citizens of the Republic of Moldova and foreigners under the jurisdiction of our state. At the same time, the state has the obligation not to let the rights and freedoms of the citizens in the customs territory of the Republic of Moldova be exposed to any damage derived from committing the act of smuggling.
Smuggling and tax evasion harm the international society as a whole, by reducing budget receipts, which implicitly leads to the insufficient financing of the social and economic policies of the state, but also to the practice of unfair competition and the distortion of the business environment, for these reasons the Customs Service of the Republic Moldova makes maximum effort to combat smuggling crimes.
Section 9 National commodity nomenclature of foreign economic affairs
General
The Harmonized System, HS, nomenclature allows to identify precisely your product and check what tariff lines and rules apply. It is a logical structure to classify goods, used uniformly by customs authorities around the world.
The Harmonized Commodity Description and Coding System (HS), commonly referred to as the Harmonized System, is an international system to classify goods developed by the World Customs Organization (WCO). It is a broad classification system of around 5,000 six-digit product categories organized in a hierarchical structure by sections:
• chapters (2 digits)
• headings (4 digits)
• sub-headings (6 digits)
• and supported by implementation rules and explanatory notes.
It allows economic operators, custom officials and legislators from any country to identify the same product by means of a numeric code.
Countries use the HS system as a basis for customs tariffs and the collection of statistical data. They further sub-divide the six-digit HS product categories into eight or more tariff lines for greater specificity. The European Union uses eight-digit codes.
How is the HS nomenclature structured?
• 21 major sections
• 97 chapters (2 digits)
• headings (4-digit code)
• sub-headings (6-digit code)
• 5,000 commodity groups
Example of product classification
• section II vegetable products
o chapter 07 edible vegetables and certain roots and tubers
§ heading: 0705 lettuce (lactuca sativa) and chicory (cichorium spp.), fresh or chilled
· lettuce
o sub-heading 070511: cabbage lettuce (head lettuce)
o sub-heading 070519: other
· chicory
o sub-heading 070521: witloof chicory (chicorium intybus var. foliosum)
o sub-heading 070529: other
Notes on the HS nomenclature
• almost all countries in the world share the same interpretation for HS codes
• the system is used by more than 200 countries and economies as a basis for their customs tariffs and for the collection of international trade statistics - over 98% of the merchandise in international trade is classified in terms of the HS
• HS codes are constantly updated to reflect changes in technology and the emergence of new products - the most recent amendment came into force in 2022, thus the current version is named HS Nomenclature 2022 edition[14]
• in practice, however, some countries might adapt their procedures and legislation at different times - this sometimes leads to temporary inconsistencies
• the Combined Nomenclature of the European Union (EU) is the EU's eight-digit coding system, comprising the HS codes with further EU subdivisions and legal notes specifically created to address the needs of the EU[15]
[14] https://www.wcoomd.org/en/topics/nomenclature/instrument-and-tools/hs-nomenclature-2022-edition/hs-nomenclature-2022-edition.aspx
[15] Source: https://trade.ec.europa.eu/access-to-markets/ro/content/sistemul-armonizat-0
9.1. The essence of the National commodity nomenclature of foreign economic affairs
The combined nomenclature of goods (Law no. 172/2014)[16] which is in accordance with the International Convention on the Harmonized System of Description and Coding of Goods of June 14, 1983, approved by the World Customs Organization, to which the Republic of Moldova is party (Law no. 112-XV /22 April 2004[17]) and it is applied throughout the customs territory for the purpose of:
• the uniform codification of goods introduced into and/or removed from the territory of the country, as well as placed in certain regimes and customs destinations;
• the application of customs duties on the import of goods;
• obtaining a statistic of the country's foreign trade.
The combined nomenclature of goods was developed in accordance with the requirements of international practices, considering the changes made in the Harmonized System of description and coding of goods, approved by the World Customs Organization.
The combined goods nomenclature is divided into 21 major sections and 99 chapters, with explanatory notes for each chapter, also the tariff code is composed from 9 digits: 6 digits according to the Harmonized System plus 3 digits additional for the national level for subheadings.
The amount of customs duties, as well as the list of goods subjects to them, related to each separate tariff position, is approved by the Parliament.
The rates of the customs duty are unique and cannot be changed, except for the cases stipulated by the legislation and the international treaties to which the Republic of Moldova is party.
The following chapters of goods are defined by the national commodity nomenclature of foreign economic activity:
SECTION I LIVE ANIMALS; ANIMAL PRODUCTS
Chapter 1 Live animals.
Chapter 2 Meat and edible meat offal.
Chapter 3 Fish and crustaceans, mollusks and other aquatic invertebrates.
Chapter 4 Dairy produce; birds' eggs; natural honey; edible products of animal origin, not elsewhere specified or included.
Chapter 5 Products of animal origin, not elsewhere specified or included.
[16] https://www.legis.md/cautare/getResults?doc_id=136151&lang=ro#
[17] https://www.legis.md/cautare/getResults?doc_id=132936&lang=ro#
SECTION II VEGETABLE PRODUCTS
Chapter 6 Live trees and other plants; bulbs, roots and the like; cut flowers and ornamental foliage.
Chapter 7 Edible vegetables and certain roots and tubers.
Chapter 8 Edible fruit and nuts; peel of citrus fruit or melons.
Chapter 9 Coffee, tea, maté and spices.
Chapter 10 Cereals.
Chapter 11 Products of the milling industry; malt; starches; inulin; wheat gluten.
Chapter 12 Oil seeds and oleaginous fruits; miscellaneous grains, seeds and fruit; industrial or medicinal plants; straw and fodder.
Chapter 13 Lac; gums, resins and other vegetable saps and extracts.
Chapter 14 Vegetable plaiting materials; vegetable products not elsewhere specified or included.
SECTION III ANIMAL, VEGETABLE OR MICROBIAL FATS AND OILS AND THEIR CLEAVAGE PRODUCTS; PREPARED EDIBLE FATS; ANIMAL OR VEGETABLE WAXES
Chapter 15 Animal, vegetable or microbial fats and oils and their cleavage products; prepared edible fats; animal or vegetable waxes.
SECTION IV PREPARED FOODSTUFFS; BEVERAGES, SPIRITS AND VINEGAR; TOBACCO AND MANUFACTURED TOBACCO SUBSTITUTES; PRODUCTS, WHETHER OR NOT CONTAINING NICOTINE, INTENDED FOR INHALATION WITHOUT COMBUSTION; OTHER NICOTINE CONTAINING PRODUCTS INTENDED FOR THE INTAKE OF NICOTINE INTO THE HUMAN BODY
Chapter 16 Preparations of meat, of fish, of crustaceans, mollusks or other aquatic invertebrates, or of insects.
Chapter 17 Sugars and sugar confectionery.
Chapter 18 Cocoa and cocoa preparations.
Chapter 19 Preparations of cereals, flour, starch or milk; pastrycooks' products.
Chapter 20 Preparations of vegetables, fruit, nuts or other parts of plants.
Chapter 21 Miscellaneous edible preparations.
Chapter 22 Beverages, spirits and vinegar.
Chapter 23 Residues and waste from the food industries; prepared animal fodder.
Chapter 24 Tobacco and manufactured tobacco substitutes; products, whether or not containing nicotine, intended for inhalation without combustion; other nicotine containing products intended for the intake of nicotine into the human body.
SECTION V MINERAL PRODUCTS
Chapter 25 Salt; sulphur; earths and stone; plastering materials, lime and cement.
Chapter 26 Ores, slag and ash.
Chapter 27 Mineral fuels, mineral oils and products of their distillation; bituminous substances; mineral waxes.
SECTION VI PRODUCTS OF THE CHEMICAL OR ALLIED INDUSTRIES
Chapter 28 Inorganic chemicals; organic or inorganic compounds of precious metals, of rare-earth metals, of radioactive elements or of isotopes.
Chapter 29 Organic chemicals.
Chapter 30 Pharmaceutical products.
Chapter 31 Fertilizers.
Chapter 32 Tanning or dyeing extracts; tannins and their derivatives; dyes, pigments and other coloring matter; paints and varnishes; putty and other mastics; inks.
Chapter 33 Essential oils and resinoids; perfumery, cosmetic or toilet preparations.
Chapter 34 Soap, organic surface-active agents, washing preparations, lubricating preparations, artificial waxes, prepared waxes, polishing or scouring preparations, candles and similar articles, modelling pastes, “dental waxes” and dental preparations with a basis of plaster.
Chapter 35 Albuminoidal substances; modified starches; glues; enzymes.
Chapter 36 Explosives; pyrotechnic products; matches; pyrophoric alloys; certain combustible preparations.
Chapter 37 Photographic or cinematographic goods.
Chapter 38 Miscellaneous chemical products.
SECTION VII PLASTICS AND ARTICLES THEREOF; RUBBER AND ARTICLES THEREOF
Chapter 39 Plastics and articles thereof.
Chapter 40 Rubber and articles thereof.
SECTION VIII RAW HIDES AND SKINS, LEATHER, FURSKINS AND ARTICLES THEREOF; SADDLERY AND HARNESS; TRAVEL GOODS, HANDBAGS AND SIMILAR CONTAINERS; ARTICLES OF ANIMAL GUT (OTHER THAN SILK-WORM GUT)
Chapter 41 Raw hides and skins (other than furskins) and leather.
Chapter 42 Articles of leather; saddlery and harness; travel goods, handbags and similar containers; articles of animal gut (other than silk-worm gut).
Chapter 43 Furskins and artificial fur; manufactures thereof.
SECTION IX WOOD AND ARTICLES OF WOOD; WOOD CHARCOAL; CORK AND ARTICLES OF CORK; MANUFACTURES OF STRAW, OF ESPARTO OR OF OTHER PLAITING MATERIALS; BASKETWARE AND WICKERWORK
Chapter 44 Wood and articles of wood; wood charcoal.
Chapter 45 Cork and articles of cork.
Chapter 46 Manufactures of straw, of esparto or of other plaiting materials; basketware and wickerwork.
SECTION X PULP OF WOOD OR OF OTHER FIBROUS CELLULOSIC MATERIAL; RECOVERED (WASTE AND SCRAP) PAPER OR PAPERBOARD; PAPER AND PAPERBOARD AND ARTICLES THEREOF
Chapter 47 Pulp of wood or of other fibrous cellulosic material; recovered (waste and scrap) paper or paperboard.
Chapter 48 Paper and paperboard; articles of paper pulp, of paper or of paperboard.
Chapter 49 Printed books, newspapers, pictures and other products of the printing industry; manuscripts, typescripts and plans.
SECTION XI TEXTILES AND TEXTILE ARTICLES
Chapter 50 Silk.
Chapter 51 Wool, fine or coarse animal hair; horsehair yarn and woven fabric.
Chapter 52 Cotton.
Chapter 53 Other vegetable textile fibres; paper yarn and woven fabrics of paper yarn.
Chapter 54 Man-made filaments; strip and the like of man-made textile materials.
Chapter 55 Man-made staple fibres.
Chapter 56 Wadding, felt and nonwovens; special yarns; twine, cordage, ropes and cables and articles thereof.
Chapter 57 Carpets and other textile floor coverings.
Chapter 58 Special woven fabrics; tufted textile fabrics; lace; tapestries; trimmings; embroidery.
Chapter 59 Impregnated, coated, covered or laminated textile fabrics; textile articles of a kind suitable for industrial use.
Chapter 60 Knitted or crocheted fabrics.
Chapter 61 Articles of apparel and clothing accessories, knitted or crocheted.
Chapter 62 Articles of apparel and clothing accessories, not knitted or crocheted.
Chapter 63 Other made up textile articles; sets; worn clothing and worn textile articles; rags.
SECTION XII FOOTWEAR, HEADGEAR, UMBRELLAS, SUN UMBRELLAS, WALKING-STICKS, SEAT-STICKS, WHIPS, RIDING-CROPS AND PARTS THEREOF; PREPARED FEATHERS AND ARTICLES MADE THEREWITH; ARTIFICIAL FLOWERS; ARTICLES OF HUMAN HAIR
Chapter 64 Footwear, gaiters and the like; parts of such articles.
Chapter 65 Headgear and parts thereof.
Chapter 66 Umbrellas, sun umbrellas, walking-sticks, seat-sticks, whips, riding-crops and parts thereof.
Chapter 67 Prepared feathers and down and articles made of feathers or of down; artificial flowers; articles of human hair.
SECTION XIII ARTICLES OF STONE, PLASTER, CEMENT, ASBESTOS, MICA OR SIMILAR MATERIALS; CERAMIC PRODUCTS; GLASS AND GLASSWARE
Chapter 68 Articles of stone, plaster, cement, asbestos, mica or similar materials.
Chapter 69 Ceramic products.
Chapter 70 Glass and glassware.
SECTION XIV NATURAL OR CULTURED PEARLS, PRECIOUS OR SEMI-PRECIOUS STONES, PRECIOUS METALS, METALS CLAD WITH PRECIOUS METAL AND ARTICLES THEREOF; IMITATION JEWELLERY; COIN
Chapter 71 Natural or cultured pearls, precious or semi-precious stones, precious metals, metals clad with precious metal and articles thereof; imitation jewellery; coin.
SECTION XV BASE METALS AND ARTICLES OF BASE METAL
Chapter 72 Iron and steel.
Chapter 73 Articles of iron or steel.
Chapter 74 Copper and articles thereof.
Chapter 75 Nickel and articles thereof.
Chapter 76 Aluminium and articles thereof.
Chapter 77 (Reserved for possible future use in the Harmonized System)
Chapter 78 Lead and articles thereof.
Chapter 79 Zinc and articles thereof.
Chapter 80 Tin and articles thereof.
Chapter 81 Other base metals; cermets; articles thereof.
Chapter 82 Tools, implements, cutlery, spoons and forks, of base metal; parts thereof of base metal.
Chapter 83 Miscellaneous articles of base metal.
SECTION XVI MACHINERY AND MECHANICAL APPLIANCES; ELECTRICAL EQUIPMENT; PARTS THEREOF; SOUND RECORDERS AND REPRODUCERS, TELEVISION IMAGE AND SOUND RECORDERS AND REPRODUCERS, AND PARTS AND ACCESSORIES OF SUCH ARTICLES
Chapter 84 Nuclear reactors, boilers, machinery and mechanical appliances; parts thereof.
Chapter 85 Electrical machinery and equipment and parts thereof; sound recorders and reproducers, television image and sound recorders and reproducers, and parts and accessories of such articles.
SECTION XVII VEHICLES, AIRCRAFT, VESSELS AND ASSOCIATED TRANSPORT EQUIPMENT
Chapter 86 Railway or tramway locomotives, rolling-stock and parts thereof; railway or tramway track fixtures and fittings and parts thereof; mechanical (including electro-mechanical) traffic signaling equipment of all kinds.
Chapter 87 Vehicles other than railway or tramway rolling-stock, and parts and accessories thereof.
Chapter 88 Aircraft, spacecraft, and parts thereof.
Chapter 89 Ships, boats and floating structures.
SECTION XVIII OPTICAL, PHOTOGRAPHIC, CINEMATOGRAPHIC, MEASURING, CHECKING, PRECISION, MEDICAL OR SURGICAL INSTRUMENTS AND APPARATUS; CLOCKS AND WATCHES; MUSICAL INSTRUMENTS;
Chapter 90 Optical, photographic, cinematographic, measuring, checking, precision, medical or surgical instruments and apparatus; parts and accessories thereof.
Chapter 91 Clocks and watches and parts thereof.
Chapter 92 Musical instruments; parts and accessories of such articles.
SECTION XIX ARMS AND AMMUNITION; PARTS AND ACCESSORIES THEREOF
Chapter 93 Arms and ammunition; parts and accessories thereof.
SECTION XX MISCELLANEOUS MANUFACTURED ARTICLES
Chapter 94 Furniture; bedding, mattresses, mattress supports, cushions and similar stuffed furnishings; luminaires and lighting fittings, not elsewhere specified or included; illuminated signs, illuminated name-plates and the like; prefabricated buildings.
Chapter 95 Toys, games and sports requisites; parts and accessories thereof.
Chapter 96 Miscellaneous manufactured articles.
SECTION XXI WORKS OF ART, COLLECTORS' PIECES AND ANTIQUES
Chapter 97 Works of art, collectors' pieces and antiques
Chapter 98 Staggering deliveries
Chapter 99 Special codes from the Combined Nomenclature
9.2. Rules for determining commodity codes
The classification of goods in the Combined Nomenclature of goods is carried out in accordance with the following rules:
1. The titles of sections, chapters and sub-chapters are provided for ease of reference only; for legal purposes, classification shall be determined according to the terms of the headings and any relative section or chapter notes and, provided such headings or notes do not otherwise require, according to the following provisions.
2. (a) Any reference in a heading to an article shall be taken to include a reference to that article incomplete or unfinished, provided that, as presented, the incomplete or unfinished article has the essential character of the complete or finished article. It shall also be taken to include a reference to that article complete or finished (or falling to be classified as complete or finished by virtue of this rule), presented unassembled or disassembled.
(b) Any reference in a heading to a material or substance shall be taken to include a reference to mixtures or combinations of that material or substance with other materials or substances. Any reference to goods of a given material or substance shall be taken to include a reference to goods consisting wholly or partly of such material or substance. The classification of goods consisting of more than one material or substance shall be according to the principles of rule 3.
3. When, by application of rule 2 (b) or for any other reason, goods are prima facie classifiable under two or more headings, classification shall be affected as follows:
(a) the heading which provides the most specific description shall be preferred to headings providing a more general description. However, when two or more headings each refer to part only of the materials or substances contained in mixed or composite goods or to part only of the items in a set put up for retail sale, those headings are to be regarded as equally specific in relation to those goods, even if one of them gives a more complete or precise description of the goods;
(b) mixtures, composite goods consisting of different materials or made up of different components, and goods put up in sets for retail sale, which cannot be classified by reference to 3(a), shall be classified as if they consisted of the material or component which gives them their essential character, in so far as this criterion is applicable;
(c) when goods cannot be classified by reference to 3 (a) or (b), they shall be classified under the heading which occurs last in numerical order among those which equally merit consideration.
4. Goods which cannot be classified in accordance with the above rules shall be classified under the heading appropriate to the goods to which they are most akin.
5. In addition to the foregoing provisions, the following rules shall apply in respect of the goods referred to therein:
(a) camera cases, musical instrument cases, gun cases, drawing-instrument cases, necklace cases and similar containers, specially shaped or fitted to contain a specific article or set of articles, suitable for long-term use and presented with the articles for which they are intended, shall be classified with such articles when of a kind normally sold therewith. This rule does not, however, apply to containers which give the whole its essential character;
(b) subject to the provisions of rule 5 (a), packing materials and packing containers (1) presented with the goods therein shall be classified with the goods if they are of a kind normally used for packing such goods. However, this provision is not binding when such packing materials or packing containers are clearly suitable for repetitive use.
6. For legal purposes, the classification of goods in the subheadings of a heading shall be determined according to the terms of those subheadings and any related subheading notes and, mutatis mutandis, to the above rules, on the understanding that only subheadings at the same level are comparable. For the purposes of this rule, the relative section and chapter notes also apply, unless the context requires otherwise.
9.3. Preliminary tariff decisions
Preliminary tariff decision - decision regarding the classification of goods issued exclusively by the Customs Service, prior to their customs clearance, binding for the territorial customs bodies and the owner, when the conditions of the Order of Customs Service no. 296/2016 [18]regarding the approval of the Regulation regarding the goods classification decision, are respected.
As part of an expected import or export operation, the interested parties have the right to request the Customs Service to issue the prior tariff decision on the classification of the goods (hereinafter the prior tariff decision). The request for issuing the prior tariff decision is made in writing form to the head office of the Customs Service.
The request regarding the issuance of the preliminary tariff decision must refer to a single type of commodity (same commercial name, brand, model, etc.). The documents and information necessary for the classification of the goods will be attached to the request, which will contain the following data:
a) the owner's name/designation, domicile/headquarters and contact telephone number;
b) the applicant's name/designation, domicile/headquarters and contact telephone number if he is not the owner;
c) the detailed description of the goods that will allow its identification and classification according to the Combined Nomenclature of the goods;
d) the composition of the goods and the examination methods applied to establish them, if the classification depends on them;
e) the samples, photos, plans, catalogs or any other documents in the state language that may be useful to the Customs Service in determining the goods code according to the Combined Nomenclature of goods (to be attached as annexes to the request);
f) the product code according to the applicant's opinion;
g) any data to be considered confidential;
h) acceptance that the information provided be registered in a database of the Customs Service and as elements of the prior tariff decision, including any photo, sketch, brochure, etc. to be public, with the exception of information indicated by the applicant as confidential, for which the provisions of Law no. 171-XIII/1994 regarding commercial secrecy;
i) information about requests submitted to the Customs Service or prior tariff decisions issued for identical or similar goods, if the applicant has such information;
j) the act confirming the right of representation, if the applicant is different from the holder.
The preliminary tariff decision is issued in two copies. One copy is given to the holder or applicant, and the second copy is kept in the file of the Customs Service and is used for record purposes. Its validity period is 3 years.
In the process of customs clearance of the goods, the presentation of the preliminary tariff decision will be ensured in the original by the owner (declarant) or his representative (customs broker). The copy of the preliminary tariff decision is attached to the documents related to the transaction.
The holder applies the preliminary tariff decision only if he proves that the declared goods comply in all respects with those described in the decision.
[18] https://www.legis.md/cautare/getResults?doc_id=136668&lang=ro#
At the same time the Customs Service keeps the record of all the issued preliminary tariff decisions, but the current available decisions are publicly accessible on the website: https://trade.gov.md/ro/articles/informatii-privind-deciziile-tarifare-prealabile-emise/ in order to help the interested parties to classify their closely related goods.
Section 10 Control lists
10.1. Structure of the national control lists
Moldova has as reference the EU Control Lists such as: List of Dual-Use Items[19] and the Common Military List of the European Union[20], which is based on multilateral export control regimes such as The Wassenaar Arrangement (WA) on Export Controls for Conventional Arms and Dual-Use Goods and Technologies, The Nuclear Suppliers Group (NSG), for the control of nuclear related technology, The Australia Group (AG) for control of chemical and biological technology that could be weaponized, The Missile Technology Control Regime (MTCR) for the control of rockets and other aerial vehicles capable of delivering WMD.
Considering the Nomenclature of the strategic goods that are the subject of the control list, dual-use goods are classified in categories, regulated by the Government Decision No. 606 from 2002.
The list of materials, devices, equipment and information relevant to the proliferation of nuclear weapons and other nuclear explosive devices has been developed by NARNRA and published as Annex no. 2 to Law no. 132 from 2012.
According to art. 32 let. c. (2) of Law no. 132/2012, the import, export, re-export, transit, temporary admission or temporary export of nuclear material are prohibited without the authorization of the NARNRA and of the authorized public authorities. The NARNRA website does not present statistical data on the issuance of radiological authorizations for types of activity import /export, temporary admission or temporary export and delivery of radioactive sources, transit of radioactive materials (Article 19, let. d, e, Law no. 132/2012). NARNRA is responsible (Chapter VI, Law no. 132/2012; Government Decision no. 152/2014) of the record of compliance with the provisions of the NPT and the Agreement on the Application of Nuclear Safeguards in relation to the NPT and the Protocol to this Agreement, bat NARNRA web site does not present annual export data for dual-purpose proliferation goods.
Data on the volume of dual-use goods can be checked in the statistical yearbook of the National Bureau of Statistics provided the domains and type of goods that are known. These data can also be consulted at the Customs Service, the Ministry of Economy and Digitalization (the former authority responsible for issuing export licenses for strategic goods), also at the Agency of Public Services.
[19] https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=celex%3A32021R0821
[20] https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A52020XG0313%2807%29
PART I List of Dual-Use products and Technologies
This list of dual-use items is understood to be items including software and technology that are suitable for both civil and military use. This handbook refers to dual-use “goods” instead of “items”, but what is important is that this refers to dual-use goods as well as software and technology.
Export control on dual-use goods aims to prevent certain goods normally used for civil purposes, from being employed in the development and manufacture of weapons, in particular weapons of mass destruction (nuclear, chemical weapons, biological) and missiles capable of delivering these weapons to their targets.
Initially, multilateral export control regimes such as NSG, AG and MTCR, and the Wassenaar Arrangement, decide which goods are dual-use goods. In addition, certain chemicals are subject to controls in accordance with the Chemical Weapons Convention (CWC).
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Category
0
Nuclear materials, facilities and equipment
1
Special materials and related equipment
2
Materials processing
3
Electronics
4
Computers
5
Telecommunications and "information security"
6
Sensors and lasers
7
Navigation and avionics
8
Marine
9
Aerospace and propulsion
Defined Terms
Throughout the Dual Use List, certain words take specific meanings. These are identified as defined terms.
Defined terms that are used in more than one entry are identified with “double quotes” around them. The definition can be found at the beginning of the List.
Defined terms that only appear in one entry have ‘single quotes’ around them and are defined within that entry under a ‘Technical Note.’
Examples:
"Information security" is all the means and functions ensuring the accessibility, confidentiality or integrity of information or communications, excluding the means and functions intended to safeguard against malfunctions. This includes "cryptography", "cryptographic activation", 'cryptanalysis', protection against compromising emanations and computer security.
"Unmanned Aerial Vehicle" ("UAV") means any aircraft capable of initiating flight and sustaining controlled flight and navigation without any human presence on board.
"Development" is related to all phases prior to serial production, such as: design, design research, design analyses, design concepts, assembly and testing of prototypes, pilot production schemes, design data, process of transforming design data into a product, configuration design, integration design, layouts.
"Production" means all production phases, such as: construction, production engineering, manufacture, integration, assembly (mounting),inspection, testing, quality assurance.
"Use" means operation, installation (including on-site installation), maintenance (checking), repair, overhaul and refurbishing.
Control Language
The term ‘specially designed or modified’ is used widely in the control list:
‘Specially designed’ means the item was designed solely for a certain purpose.
The Dual use list is a “positive list” compared to the military list is a negative list; i.e., a military item is controlled unless there is an exemption.
Example for ‘Specially designed’:
0B005 Plant specially designed for the fabrication of ″nuclear reactor″ fuel elements and specially designed or prepared equipment therefor.
Note:
A plant for the fabrication of ″nuclear reactor″ fuel elements includes equipment which:
a. Normally comes into direct contact with or directly processes or controls the production flow of nuclear materials;
b. Seals the nuclear materials within the cladding;
c. Checks the integrity of the cladding or the seal; or
d. Checks the finish treatment of the sealed fuel.
General Notes
Four types of Notes to the Dual-use Control list:
· General Notes
· Nuclear Technology Note (NTN)
· General Technology Notes (GTN)
· General Software Notes (GSN).
“Principal Element Note”
· Defines control status of listed components as part of unlisted goods
· Controlled when “Principle Element” and “easily removable”
Note stating that the list also includes “used goods”
„Nuclear Technology Note (NTN)”
· Valid for Category 0 (special nuclear goods)
· Defines wide control as “technology directly associated with”
· Decontrol for “public domain” and “basic scientific research
„General Technology Note (GTN)”
· Valid for Categories 1 to 9
· Defines control as “technology required for” (key technology)
· Decontrol for “public domain”, “basic scientific research” and “patent applications”.
„General Software Note (GSN)”
· Decontrol for “public domain”
· Decontrol for specific “mass market software” (not valid for Cat. 5, Part 2 “Information
· Security”; in Cat. 5, Part 2 the “Cryptography Note” decontrols specific “mass market goods”)
Notes (Three types of Notes are used in the lists):
1. Note – Generally used to clarify the control status and, in most cases, to remove items from control
2. Technical Note – Used to expand on the meaning of the control and often to explain terms in a control entry
Example: A Technical Note usually defines a word in the control text:
2A226 Valves having all of the following characteristics:
a. A ’nominal size’ of 5 mm or greater;
b. Having a bellows seal; and
c. Wholly made of or lined with aluminum, aluminum alloy, nickel, or nickel alloy containing more than60 % nickel by weight.
Technical Note: For valves with different inlet and outlet diameters, the ’nominal size’ in 2A226 refers to the smallest diameter.
3. N.B. – Used as a “signpost” to direct the user to a different area of the control list
Example: A N.B. clarifies the control status and usually points to another entry that should be considered
2B004 Hot "isostatic presses" having all of the following, and specially designed components and accessories therefor:
N.B.: See also 2B104 and 2B204
„In the public domain”
It refers to “technology” or “software” which has been made available without restrictions upon its further dissemination.
Note: Copyright restrictions do not remove “technology” or “software” from being “in the public domain”.
The dual-use list is very technical and a certain degree of technical knowledge is necessary in order to navigate through the list. An understanding of the defined terms and control language is important in order to understand which items are subject to list-based controls. Users of the Control List focus on the entry that specifies their items, but all Notes need to be considered to arrive at a proper classification.
PART II List of Military products
The military goods are a translation of the internationally agreed Munitions List of the Wassenaar Arrangement. Examples of military goods are weapons, weapons systems, technology and software for such systems and other equipment designed specifically for military purposes. These goods are subdivided into items ML1 to ML22.[21] These 22 items give detailed descriptions of military goods, generally including accessories and/or components and related equipment. A brief description of the categories is given below.
[21]Common Military List of the European Union (europa.eu)
#tableId {null margin: 0 auto !important; }#tableId {null margin: 0 auto !important; }#tableId {null margin: 0 auto !important; }#tableId {null margin: 0 auto !important; }#tableId {null margin: 0 auto !important; }#tableId {null margin: 0 auto !important; }#tableId {null margin: 0 auto !important; }#tableId {null margin: 0 auto !important; }#tableId {null margin: 0 auto !important; }#tableId {null margin: 0 auto !important; }#tableId {null margin: 0 auto !important; }#tableId {null margin: 0 auto !important; }#tableId {null margin: 0 auto !important; }#tableId {null margin: 0 auto !important; }#tableId {null margin: 0 auto !important; }#assignedTableId-1706612899782 {width: 207.25pt; border: none; margin: 0 auto !important; }ML1
Smooth-bore weapons with a caliber of less than 20 mm, other arms and automatic weapons with a caliber of 12.7 mm (caliber 0.50 inches) or less and accessories
ML2
Smooth-bore weapons with a caliber of 20 mm or more, other weapons or armament with a caliber greater than 12.7 mm (caliber 0.50 inches), projectors and accessories
ML3
Ammunition and fuse setting devices, as follows, and specially designed components
ML4
Bombs, torpedoes, rockets, missiles, other explosive devices and charges and related equipment and accessories, and specially designed components
ML5
Fire control, and related alerting and warning equipment, and related systems, test and alignment and countermeasure equipment, specially designed for military use, and specially designed components and accessories
ML6
Ground vehicles and components
ML7
Chemical or biological toxic agents, "riot control agents", radioactive materials, related equipment, components and materials
ML8
"Energetic materials", and related substances
ML9
Vessels of war (surface or underwater), special naval equipment, accessories, components and other surface vessels
ML10
"Aircraft", "lighter-than-air vehicles", Unmanned Aerial Vehicles("UAVs"), aero-engines and "aircraft" equipment, related equipment, and components, specially designed or modified for military use
ML11
Electronic equipment, "space craft and components, not specified else where in the present List
ML12
High velocity kinetic energy weapon systems and related equipment and specially designed components
ML13
Armored or protective equipment, constructions and components
ML14
'Specialized equipment for military training' or for simulating military scenarios, simulators specially designed for training in the use of any firearm or weapon specified by ML1 or ML2, and specially designed components and accessories
ML15
Imaging or countermeasure equipment, specially designed for military use, and specially designed components and accessories therefor
ML16
Forgings, castings and other unfinished products, specially designed for items specified by ML1 toML4, ML6, ML9, ML10, ML12 or ML19
ML17
Miscellaneous equipment, materials and libraries and specially designed components
ML18
Production equipment and components
ML19
Directed Energy Weapon(DEW) systems, related or countermeasure equipment and test models and specially designed components
ML20
Cryogenic and "superconductive" equipment and specially designed components and accessories
ML21
"Software"
ML22
"Technology"
10.2. How to find the item in the control list
How to check if an item is on the list?
The easiest way is to find the categories that at first sight seem most relevant. You may for example carry out a full-text search for words or distinctive features that characterize the items you want to look into.
You may carry out a full-text search by clicking Ctrl-F and then write the search term in the window that opens. To find the term in other places on the control list, please click “previous” or "next".
Controlled items are identified with a five-digit control number, called Dual-Use Goods Control Classification Number. The first digit is an indication of the category, the second digit indicates the group, and the last three digits indicate the type of control or the regimes under they falling into (regimes were described in the first chapter). The following are examples of controlled items, and the control numbers that apply to them:
DU item no. 9A112 "Unmanned aerial vehicles"("UAVs"), other than those specified in 9A012, as follows –
HS code 8806 22 900 Unmanned aircraft, with maximum take-off weight more than 250 g but not more than 7 kg
DU item no. 6A005 – "Lasers", other than those specified in 0B001.g.5. or 0B001.h.6., components and optical equipment, as follows
HS code 9013 20 000 Lasers, other than laser diodes
DU item no. 8A002 Marine systems, equipment and components
(j.) Air independent power systems specially designed for underwater use –
HS code 8421 39 25 – Machinery and apparatus for filtering or purifying air.
DU item no. 2B350 Chemical manufacturing facilities, equipment and components (g.) Valves and components – HS code 8481 10 Pressure-reducing valves
10.3. How to use the correlation table
What is the Dual-Use Correlation table[22]?
It is a tool, that comes additionally to help interested parties to find the bond between the codes from the Dual Use control list (that were mentioned above) and the codes from Combined Nomenclature of the Harmonized System. Until now in the Republic of Moldova does not exist an official document that would have this type of information. Usually it is used the European version of it, as an additional source of information, for double-checking (in the case of customs declarations or authorizations etc).
22] https://circabc.europa.eu/ui/group/0e5f18c2-4b2f-42e9-aed4-dfe50ae1263b/library/c3d06bd7-6ef0-4771-bbd7-f92b976ae9a0?p=1&n=10&sort=modified_DESC available source of the official EU Correlation table (version January 23)
#tableId {null margin: 0 auto !important; }#tableId {null margin: 0 auto !important; }#tableId {null margin: 0 auto !important; }#tableId {null margin: 0 auto !important; }#tableId {null margin: 0 auto !important; }#tableId {null margin: 0 auto !important; }#tableId {null margin: 0 auto !important; }#tableId {null margin: 0 auto !important; }#tableId {null margin: 0 auto !important; }#tableId {null margin: 0 auto !important; }#tableId {null margin: 0 auto !important; }#tableId {null margin: 0 auto !important; }#tableId {null margin: 0 auto !important; }#assignedTableId-1706613369628 {margin-left: 6.75pt; margin-right: 6.75pt; margin: 0 auto !important; }HS
• Used for many purposes – taxes, trade policies, rules of origin, tariffs, trade statistics, quota controls, economic research and analysis, etc.
• Classifies all merchandise in trade
• The HS code alone cannot identify goods as strategic.
Control Lists
• Used to control trade in dual-use items
• Narrowly identifies goods ‘specially designed’ or meeting certain technical specifications required for applications of concern
What are the main differences between the HS and Control Lists?
In general, it is necessary to see and to understand a few simple things about the above-mentioned correlation table:
- It is not mandatory to be strictly respected (namely, there are some exceptions where the codes do not necessarily coincide, because the list or nomenclature is not updated or for other reasons);
- Has an advisory character;
- One DU code can be assigned to several HS codes and vice versa;
-
The HS code includes both common goods that are not the subject to control and controllable goods.
While the correlation table is helpful, numerous challenges arise:
- Some controls do not identify specific goods
- Some controls identify several kinds or multiple forms of goods
- Some controls are narrowly defined based on technical specifications not used in the HS
- Some controls are overlapping such that a commodity falling under a certain HS code could fall under various controls depending on technical specifications
- Some controls apply to goods not included in the HS
- Structural incompatibilities between the two systems
- Errors in existing correlation table
- Technology controls don’t correlate to the HS
At the same time there is a possibility to check on the goods which are going on the import or export on the official web page https://trade.gov.md/ro (see how it looks below), which allows to identify the necessity of presenting permissive acts or other documents at the clearance, at the same time, it allows you to understand the nature of the goods that you are going to use in future transactions. This additional tool, which uses keywords or tariff codes as a basis, can guide in the case of strategic goods on the need to present additional documents, but, again, it should be mentioned that, it is not always necessary to present additional documents (in case the technical specifications of the good do not correspond with requirements of the goods of the control list).
10.4. Use of open sources and special programs
WCO Strategic Trade Control Enforcement Implementation Guide
This Implementation Guide responds to requests from World Customs Organization (WCO) Members for practical assistance related to the enforcement of strategic trade controls. It is divided into two principal sections, one for senior Customs managers and policy officials, and one for operational Customs officers.
https://www.wcoomd.org/en/topics/enforcement-and-compliance/instruments-and-tools/guidelines/wco-strategic-trade-control-enforcement-implementation-guide.aspx
CIRCABC (Collaborative and Information Resources Centre for Administration, Businesses and Citizens)
EU platform that provides a web-based application, which enables geographically spread collaborative groups to share documents, information and resources in private workspace. CIRCABC is accessible to any user inside or outside of the European Institutions. Businesses; international, national or local administrations; and associations of citizens can access and use CIRCABC. The link attached points to useful information about export control.
https://circabc.europa.eu/ui/group/654251c7-f897-4098-afc3-6eb39477797e/library/d0e7ce44-a76e-4920-a510-111501aae288
Strategic Trade Atlas - Commodity-based view
It is an online tool called The Strategic Trade Atlas that provides graphical representations of trade flows classified under Harmonized System (HS) codes associated with strategic commodities, i.e., goods of militarily strategic value, including dual-use goods.
https://public.tableau.com/app/profile/strategic.trade.atlas/viz/StrategicTradeAtlas-Commodity-basedviews/CommodityviewLeftandRightpage
The United Nations Comtrade database
It is a comprehensive global trade data platform that aggregates detailed global annual and monthly trade statistics by product and trading partner for use by governments, academia, research institutes, and enterprises. Data compiled by the United Nations Statistics Division covers approximately 200 countries and represents more than 99% of the world's merchandise trade. Information can be extracted in a variety of formats, including API developer tools for integration into enterprise applications and workflows.
https://comtradeplus.un.org/
Export Control Handbook for Chemicals
The handbook helps the users to improve their export compliance by limiting the risk of mistakes and penalties by orienting themselves within the following collection of export regulations in force. Another important application of the handbook includes facilitating authorities to identify sensitive transactions.
https://data.jrc.ec.europa.eu/dataset/8f0d4fa2-110d-4c05-b2a8-ecd3addbf16b
EU Sanctions Map
The EU sanctions map includes EU and UN sanctions, lists of sanctioned persons, sanctions information tools, websites of competent authorities, a and search engine for restrictive measures imposed on goods in accordance with the Commodity Code.
On the main page, the table contains a list of countries, the type of sanctions imposed on each country, the author and types of sanctions, lists of individuals and legal entities and organizations, legal acts, and guidelines. Sanctions map updated as soon as self-regulation takes effect
https://www.sanctionsmap.eu/#/main
Office of Foreign Assets Control (OFAC) sanctions search page (Sanctions List Search)
This is a free tool created by OFAC to help the public comply with the sanctions program rules. It is intended for individual users seeking potential compliance with OFAC's sanctions lists.
https://sanctionssearch.ofac.treas.gov/
Wisconsin Project on Nuclear Arms Control
It is a non-profit private organization that conducts research and public awareness to prevent the spread of nuclear, chemical and biological weapons and their means of delivery. The Wisconsin Project receives support through grants from the U.S. government and private foundations. At the same time, thanks to the US embassy in Moldova the trained personnel from the customs, ministry of economy, army etc. have obtained access to this data base after participating a course which provided necessary information.
https://www.wisconsinproject.org/
Section 11 Case studies
11.1. Permitted goods that were introduced/take out based on the permissive acts
Example 1:
The corrosion-resistant, heat-resistant alloy ХН73МБТЮ (ЭИ698) is used in the aviation industry. The long-term operating temperature of nickel-plated steels is 750-800 degrees, depending on the shape of the manufactured parts
Code DU: 1C002 HS: 7502 20 000
Example 2:
Agro drones capable of lifting 30 liters of spray solution, with wide transmission capabilities and centimeter-level precision positioning.
Code DU: 9A112 HS: 8806 23
Example 3:
PN40 steel safety valve designed to protect installations against possible overpressures. It works automatically and closes when the pressure conditions return to normal. The safety valve 6302 is with spring and instant discharge, made of PN40 steel. As standard, it is delivered sealed with a closed lid, a sealing plug and a test lever. The seat and disc are heat strengthened, offering a high resistance to erosion.
Code DU: 2B350 HS: 8481 10
Example 4:
Capacitors are electronic components that store and release electrical energy. They have various applications in electronic circuits, providing a range of functions.
Code DU: 3A201 HS: 8532
Example 5:
The modular respiratory protection product range comprises a versatile family of Powered Air Purifying Respirators (PAPRs) that can be rapidly sanitized and re-used for medical, pharmaceutical, industrial, and first responder environments. And with a wide selection of cartridges and filters, PAPRs can protect workers anywhere from industrial particulates up to noxious chemical gases, Coronavirus, and Tuberculosis.
Code DU: 1A004 HS: 9020 00
Example 6:
Sodium sulphide (CAS 1313-82-2)
Sodium Sulfide, Fused Flakes, also known as disodium sulfide, is used as an oxygen scavenger agent in water treatment as well as a metals precipitant. Ungraded products supplied by Spectrum are indicative of a grade suitable for general industrial use or research purposes and typically are not suitable for human consumption or therapeutic use but could also be used to create chemical weapons.
Code DU: 1C350.50 HS: 2830 10
Example 7:
Alluminium Alloys - The use of aluminum as a material for mechanical and metal constructions is limited due to its low resistance properties. however, a number of the properties of aluminum make this metal particularly appreciated for a number of applications. Thus, the high plasticity of aluminum allows to obtain from it-! through plastic deformation very thin products like the foils used for packaging in the food industry"! the high electrical conductivity 65% of that of copper determines that aluminum is widely used as a material for electrical conductors"! high resistance to corrosion allows the use of aluminum in the chemical and food industry. Aluminum is used on a large scale as the basis for an important series of alloys.
Code DU: 1C002 HS: 7601 20
11.2. Goods that had attempts to be smuggled
Smuggling attempt with military parts
Retention of hazard cards with radioactive source
ANNEXES
Useful links:
1. https://public.tableau.com/app/profile/strategic.trade.atlas
2. https://www.sanctionsmap.eu/#/main
3. https://www.wcoomd.org/-/media/wco/public/global/pdf/topics/enforcement-and-compliance/activities-and-programmes/security-programme/un-scr-1540_2004.pdf?db=web
4. https://www.wcoomd.org/en/topics/enforcement-and-compliance/instruments-and-tools/guidelines/wco-strategic-trade-control-enforcement-implementation-guide.aspx
5. https://www.bis.doc.gov/index.php/licensing/commerce-control-list-classification
Legislation:
6. The customs code of the Republic of Moldova no. 1149/20.07.2000
7. Government Decision no. 1140/02.11.2005 for the approval of the Regulation on the application of customs destinations provided for by the Customs Code of the Republic of Moldova
8. The Government's decision for the approval of the Regulation regarding the procedure for carrying out the subsequent control by the customs bodies no. 1000/2018;
9. Law no. 131 of June 8, 2012 regarding state control over entrepreneurial activity.
10. GD no. 434/2015 on Regulation on safe transport of radioactive materials. http://lex.justice.md/viewdoc.php?action=view&view=doc&id=360013&lang=1
11. Contravention Codes of the Republic of Moldova http://lex.justice.md/index.php?action=view&view=doc&id=330333
12. Penal Code of the Republic of Moldova http://lex.justice.md/md/331268/
13.UN Sanctions. https://www.un.org/securitycouncil/sanctions/un-sc-consolidated-listUN
Figure 5 STATISTICS OF AUTHORISED TRANSACTIONS IN REPUBLIC OF MOLDOVA
Correlation table HS code Dual Use Code (version 2023)
#tableId {null margin: 0 auto !important; }#tableId {null margin: 0 auto !important; }#tableId {null margin: 0 auto !important; }#tableId {null margin: 0 auto !important; }#tableId {null margin: 0 auto !important; }#tableId {null margin: 0 auto !important; }#tableId {null margin: 0 auto !important; }#tableId {null margin: 0 auto !important; }#tableId {null margin: 0 auto !important; }#tableId {null margin: 0 auto !important; }#tableId {null margin: 0 auto !important; }#tableId {null margin: 0 auto !important; }#tableId {null margin: 0 auto !important; }#assignedTableId-1706614007015 {width: 121.25pt; margin: 0 auto !important; }
CN Codes 2023
DualUse
Codification
2404120000
1C450 b1
2404920000
1C450 b1
2612101000
0C001
2612109000
0C001
2612201000
0C001
2612209000
0C001
2620999500
0C001
2707100000
1C111
2707200000
1C111
2707300000
1C111
2707400000
1C111
2707500000
1C111
2707999900
1C111
2710122100
1C111
2710122500
1C111
2710123100
1C111
2710124100
1C111
2710124500
1C111
2710124900
1C111
2710125000
1C111
2710127000
1C111
2710129000
1C111
2710192100
1C111
2710192500
1C111
2710192900
1C111
2710196200
1C111
2710196600
1C111
2710196700
1C111
2710201100
1C111
2710201600
1C111
2710201900
1C111
2710203200
1C111
2710203800
1C111
2710209000
1C111
2711110000
1C111
2711121100
1C111
2711129400
1C111
2711129700
1C111
2711139100
1C111
2711139700
1C111
2711140000
1C111
2711190000
1C111
2711290000
1C111
2712200000
1C111
2712901900
1C111
2712909100
1C111
2712909900
1C111
2804100000
1C111
2804291000
1C232
2804400000
1C111
2804501000
1C111
2804501000
1C225
2804501000
1C011b
2804509000
6C002
2805120000
1C227
2805199000
1C233
2808000000
1C111
2810009000
1C225
2811110000
1C350 24
2811120000
1C450 a6
2811293000
1C111
2812110000
1C450 a4
2812120000
1C350 2
2812130000
1C350 7
2812140000
1C350 38
2812150000
1C350 51
2812160000
1C350 52
2812170000
1C350 9
2812199000
1C350 31
2812900000
1C111
2812900000
1C238
2813901000
1C350 47
2818200000
0C005
2819909000
1C001
2821100000
1C101
2825100000
1C111
2825600000
1C234
2825902000
1C230
2825908500
1C230
2825908500
1C231
2825908500
1C234
2826191000
1C350 42
2826191000
1C350 43
2826191000
1C350 44
2826199000
1C230
2826199000
1C231
2826199000
1C234
2826199000
1C350 14
2826199000
1C350 41
2826908000
1C350 62
2827398500
1C230
2827398500
1C231
2827398500
1C234
2827499000
1C230
2827499000
1C231
2827499000
1C234
2827590000
1C230
2827590000
1C231
2827590000
1C234
2827600000
1C230
2827600000
1C234
2828900000
1C230
2828900000
1C231
2828900000
1C234
2829901000
1C111
2829901000
1C230
2829901000
1C231
2829901000
1C234
2829908000
1C230
2829908000
1C231
2829908000
1C234
2830100000
1C350 50
2830908500
1C230
2830908500
1C231
2830908500
1C234
2832200000
1C230
2832200000
1C231
2832200000
1C234
2833298000
1C230
2833298000
1C231
2833298000
1C234
2833300000
1C230
2833300000
1C231
2833300000
1C234
2833400000
1C230
2833400000
1C231
2833400000
1C234
2834100000
1C230
2834100000
1C231
2834100000
1C234
2834292000
1C230
2834298000
1C230
2834298000
1C231
2834298000
1C234
2835100000
1C230
2835100000
1C231
2835100000
1C234
2835299000
1C230
2835299000
1C231
2835299000
1C234
2835390000
1C230
2835390000
1C231
2835390000
1C234
2836991700
1C230
2836991700
1C231
2836991700
1C234
2837110000
1C350 45
2837190000
1C230
2837190000
1C231
2837190000
1C234
2837190000
1C350 40
2839900000
1C230
2839900000
1C231
2839900000
1C234
2840209000
1C230
2840209000
1C231
2840209000
1C234
2840300000
1C230
2840300000
1C231
2840300000
1C234
2841908500
1C234
2842901000
6C002
2842901000
6C004
2842908000
1C230
2842908000
1C012a
2842908000
1C012b
2844101000
0C001
2844101000
1C236
2844103000
0C001
2844103000
1C236
2844105000
0C001
2844105000
1C236
2844109000
0C001
2844109000
0C002
2844109000
1C004
2844109000
1C236
2844202500
0C002
2844202500
1C236
2844203500
0C002
2844203500
1C236
2844205100
0C002
2844205100
1C236
2844205100
1C012a
2844205900
0C002
2844205900
1C236
2844205900
1C012a
2844209900
0C001
2844209900
0C002
2844209900
1C236
2844209900
1C012a
2844301100
0C001
2844301100
1C236
2844301900
0C001
2844301900
0C002
2844301900
1C236
2844305100
0C001
2844305100
1C236
2844305500
0C001
2844305500
1C236
2844306100
0C001
2844306100
1C236
2844306900
0C001
2844306900
1C236
2844309100
0C001
2844309100
1C236
2844309900
0C001
2844309900
0C002
2844309900
1C236
2844411000
1C235
2844411000
1C236
2844419000
1C236
2844419000
1C237
2844419000
1C012b
2844419000
3C005
2844421000
1C235
2844421000
1C236
2844429000
1C236
2844429000
1C237
2844429000
1C012b
2844429000
3C005
2844431000
0C001
2844431000
1C236
2844432000
1C235
2844432000
1C236
2844438000
1C236
2844438000
1C237
2844438000
1C012b
2844438000
3C005
2844440000
1C236
2844440000
1C237
2844440000
1C012b
2844440000
3C005
2844500000
0C002
2845100000
0C003
2845200000
1C225
2845300000
1C233
2845400000
1C232
2845901000
0C003
2845909000
1C225
2845909000
1C232
2845909000
1C233
2849200000
1C007
2849200000
6C004
2849200000
3C005
2849901000
1C225
2849901000
1C011b
2849903000
1C226
2849909000
1C007
2849909000
1C230
2849909000
1C231
2849909000
1C234
2850002000
1C007
2850002000
1C111
2850002000
1C225
2850002000
1C230
2850002000
1C231
2850002000
1C234
2850002000
3C004
2850002000
3C005
2850006000
1C111
2850009000
1C007
2850009000
1C225
2850009000
1C230
2850009000
1C231
2850009000
1C234
2853100000
1C450 a5
2853909000
6C004
2902000000
1C111
2903430000
1C006
2903440000
1C006
2903450000
1C006
2903460000
1C006
2903470000
1C006
2903480000
1C006
2903491000
1C006
2903493000
1C006
2903499000
1C006
2903510000
1C006
2903510000
1C450 a2
2903590000
1C006
2903590000
1C450 a2
2903769000
1C006
2903830000
1C006
2903898000
1C006
2903998000
1C006
2904910000
1C450 a7
2905190000
1C350 28
2905599800
1C111
2905599800
1C350 15
2909303500
1C111
2909309000
1C006
2909309000
1C111
2909410000
1C111
2909430000
1C111
2909440000
1C111
2914199000
1C350 39
2918170000
1C350 32
2918199800
1C350 25
2920110000
1C450 a1
2920190000
1C450 a1
2920190000
1C350 60
2920190000
1C350 61
2920210000
1C350 6
2920220000
1C350 19
2920230000
1C350 8
2920240000
1C350 30
2920290000
1C111
2920290000
1C350 58
2920300000
1C111
2920907000
1C111
2920907000
1C350 66
2920907000
1C350 67
2920907000
1C350 68
2920907000
1C350 69
2920907000
1C350 70
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3824850000
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3824850000
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3824850000
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3824850000
1C350 61
3824850000
1C350 62
3824850000
1C350 63
3824860000
1C233
3824860000
8C001
3824860000
1C350 1
3824860000
1C350 2
3824860000
1C350 3
3824860000
1C350 4
3824860000
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3824860000
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3824860000
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3824860000
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3824870000
8C001
3824870000
1C350 1
3824870000
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3824870000
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3824870000
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3824870000
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3824870000
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3824870000
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3824870000
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3824870000
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3824870000
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3824870000
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3824880000
8C001
3824880000
1C350 1
3824880000
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3824880000
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3824880000
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3824880000
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3824880000
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3824880000
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3824880000
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3824890000
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3824890000
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3824890000
8C001
3824890000
1C350 1
3824890000
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3824890000
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3824890000
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1C350 50
3824890000
1C350 51
3824890000
1C350 52
3824890000
1C350 53
3824890000
1C350 54
3824890000
1C450 b1
3824890000
1C350 55
3824890000
1C350 56
3824890000
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3824890000
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3824890000
1C350 59
3824890000
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3824890000
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3824890000
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3824890000
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3824910000
1C450 b1
3824920000
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3824920000
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3824920000
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3824920000
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3824920000
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3824920000
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3824920000
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3824920000
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3824920000
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3824920000
1C450 b1
3824920000
1C350 55
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3824920000
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3824920000
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3824920000
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3824920000
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3824920000
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3824920000
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3824920000
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3824991500
0B001f
3824991500
1C450 b1
3824995000
1C350 14
3824995000
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3824995000
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3824995000
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3824995000
1C450 b1
3824995500
1C450 b1
3824998600
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3824998600
1C450 b1
3824999200
1C111
3824999200
1C233
3824999200
8C001
3824999200
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3824999200
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3824999200
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3824999200
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3824999200
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3824999200
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3824999200
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3824999200
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3824999200
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3824999200
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3824999200
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3824999200
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3824999200
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3824999200
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3824999200
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3824999200
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3824999200
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3824999200
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3824999200
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3824999200
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3824999200
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3824999200
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3824999200
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3824999200
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3824999200
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3824999200
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3824999200
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3824999200
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3824999200
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3824999200
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3824999200
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3824999200
1C450 b1
3824999200
1C350 55
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3824999200
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3824999200
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3824999200
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3824999300
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3824999300
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3824999300
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3824999300
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3824999300
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3824999300
1C450 b1
3824999300
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3824999300
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3824999300
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3824999300
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3824999600
1C450 b1
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The working group:
Oleksandra Bovenko
Oleksandr Siver
Kolyada Vyacheslav
Logvinova Galina
Bovenko Siarhey
Sultanova Lyudmyla
Blagoi Andriy
Revva Vladuslav
Shevchenko Ivan
UKRAINE
Section 1 A brief overview of international and national legislation
1.1. General
An overview of international legislation in the area of customs clearance and customs control of dual-use goods envisages the definition of the main tools (international rules, agreements conventions etc.) intended to ensure an effective regulation of international trade procedures as well as to unify customs rules and appropriate procedures at state borders and harmonize the system of the international customs community.
Over the past years, there were determinant trends in the international law of unifying customs procedures and bringing them into compliance with the unified international standards. Traditionally, the World Customs Organization (WCO) and the World Trade Organization have been the bodies responsible for these processes. These organizations ensure the development of “universal” international legal rules and recommendations for simplification of customs procedures that are taken into consideration and suggested for implementation in customs national laws of the world community.
One of such program documents drafted by the World Customs Organization is the International Convention on the Simplification and Harmonization of Customs Procedures (of 05/18/1973). Ukraine acceded to this Convention as revised and updated on October 5, 2006. The Convention entered into force in Ukraine on September 15, 2011.
Aside from that, a number of other international agreements have been signed over decades. The agreements aim to eliminate complications and barriers in passing customs clearance procedures and establish some fundamental rules of the principal elements in the national customs procedures: customs control, customs clearance, collection of taxes and duties established by national legislation. However, there are problems of customs clearance and control over dual-use goods using the export control procedures. These problems are governed by the following international legal acts, including:
- UN Security Council Resolution 1540;
- Treaty on the Non-Proliferation of Nuclear Weapons (the “NPT”);
- Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on their Destruction (the “CWC”);
- Convention on the Prohibition of the Development, Production and Stockpiling of Bacteriological (Biological) and Toxin Weapons and on their Destruction (the “BTWC”).
1.1.1 United Nations Security Council Resolution 1540.
The Resolution was approved on April 28, 2004, in the context of problems of non-proliferation of weapons of mass destruction. In accordance with para 3 of the Resolution, all states shall take effective measures to establish national control to prevent proliferation of nuclear, chemical and biological weapons as well as their means of delivery, including the establishment of proper controls over related materials and, to this end, they shall, in particular:
- establish, improve, review and maintain proper and effective controls at the national level over exports and cross-border movement of such items, including proper laws and regulations on control over exports, transit, cross-border movement and re-export as well as control measures over the provision of means and services pertaining to such exports and cross-border movement, for example, funding and transportation that would facilitate the proliferation. The states shall also establish measures of control over the end consumer and establish and apply proper criminal and civil sanctions for violating such laws and regulations in the field of export control (para 3 (d)).
Paragraph 10 of UN Security Council Resolution 1540 calls on all states to apply joint efforts, in accordance with their systems of legal regulation and legislation and in accordance with international law, to prevent illegal circulation of nuclear, chemical and biological weapons, as well as their means of delivery and related materials.
Later, the topic of non-proliferation of weapons of mass destruction was continued and developed in the following UN Security Council Resolutions: 1673(2006), 1810 (2008), 1887 (2009), 1977 (2011), 2055(2012) and 2325(2016)[23].
See the details at the following link: http://www.un.org/ru/sc/1540/resolutions-committee-reports-and-SC-briefings/security-council-resolutions.shtml
The international export control regimes are the international organizations that formulate the guidelines on control over international transfers of military-purpose and dual-use goods as well as over non-proliferation of goods that may be used in the creation of weapons of mass destruction (nuclear, chemical, biological) and missile means of delivery of such weapons: the Wassenaar Arrangement (WA), the Nuclear Suppliers Group (NSG), the Zanger Committee (ZC), the Missile Technology Control Regime (MTCR), and the Australia Group (AG).
The Zanger Committee and the Nuclear Suppliers Group
In accordance with the Treaty on the Non-Proliferation of Nuclear Weapons (NPT) that entered into effect in 1968, the official nuclear states that is the states that officially had nuclear weapons became the USA, Great Britain, France, USSR and China. This Treaty asserted the principle of “non-transfer” of nuclear weapons to other states as well as counteraction to their production or purchase.
Other states that are signatories to this Treaty have a “non-nuclear” status that implies an obligation not to buy and not to produce nuclear weapons as well as to establish Atomic Energy Agency (the “IAEA”) control over all peaceful nuclear activities.
(Ukraine acceded the NPT in 1994) Initially, the NPT was effective for 25 years and, in April 1995, the States Parties extended it indefinitely.
To perform individual provisions of NPT, some member countries that have alike views have set up informal joint action groups to counteract the development of nuclear programs in certain countries and established two organizations: the Zanger Committee (the “ZC”) and the Nuclear Suppliers Group (the “NSG”).
ZC was established in 1974 after four years of discussions within a group of states on the topic of their obligations set forth in Article 3 of the NPT. The Committee is an unofficial entity and acts outside the scope of the NPT.
Ukraine is a member of the Zanger Committee and participates in its proceedings since 1996. Pursuant to Article 3.2 of the NPT, each Party undertakes not to supply: (a) source or special fissionable material, or (b) equipment or material especially designed or prepared for the processing, use or production of special fissionable material, to any non-nuclear State for peaceful purposes, unless the source or special fissionable material shall be subject to the required safeguards of safe use. As NPT does not concern control over nuclear technologies directly, therefore the Zanger Committee undertook to determine the meaning of the wording “equipment or material especially designed or prepared for the processing, use or production of special fissionable material.”
The Zanger Committee approved the “Trigger List” that the state parties shall use in their national export control systems. Due to such joint action, a list was drawn up of goods and technologies that are sensitive to proliferation of nuclear weapons and an agreement was reached concerning control over transfers of such goods following the mutually agreed guidelines.
The NSG was established in 1978 as an informal association of nuclear supplier countries (Great Britain, Canada, the USSR, the USA, the Federal Republic of Germany, France, Japan) that reached an agreement on common export guidelines for “nuclear-sensitive” items and strived to prevent the acquisition of nuclear weapons by countries that are not designated by the NPT as nuclear. The guidelines are published in IAEA document INFCIRC/254. The NSG Guidelines and the technical list thereto cover industrial products that may be used to create nuclear weapons. Such guidelines and the annex thereto were first approved in 1992, which was a significant contribution to the international export control system.
As of April 2021, 48 countries participate in the Nuclear Suppliers Group international export control regime. Australia, Austria, Argentina, Belgium, Belarus, Bulgaria, Brazil, United Kingdom, Greece, Denmark, Estonia, Ireland, Iceland, Spain, Italy, Kazakhstan, Canada, China, Cyprus, Latvia, Lithuania, Luxembourg, Malta, Mexico, Netherlands, Germany, New Zealand, Norway, South Africa, Poland, Portugal, Republic of Korea (South), Russian Federation, Romania, Serbia, Slovakia, Slovenia, United States of America, Turkey, Hungary, Ukraine, Finland, France, Croatia , Switzerland, Sweden, and Japan. A European Union representative attends meetings of the regime as a permanent observer.
At present, thirty-nine states participate in the Zanger Committee, namely: Argentina Australia, Austria, Belgium, Belarus, Bulgaria, Kazakhstan, Canada, China, Croatia, Czech Republic, Denmark, Finland, France, Germany, Greece, Hungary, Ireland, Italy, Japan, Republic of Korea (South), Luxembourg, Netherlands, Nova Zealand, Norway, Poland, Portugal, Romania, the Russian Federation, Slovakia, Slovenia, South Africa, Spain, Sweden, Switzerland, Turkey, Ukraine, the United Kingdom and the United States. A European Union representative attends meetings of the regime as a permanent observer.
Missile Technology Control Regime
Missile Technology Control Regime (MTCR) was founded by Canada, France, Germany, Italy, Japan, the United Kingdom and the United States in 1987 as an informal regime by a bilateral exchange of diplomatic notes between the partners.
This regime was established to curb the proliferation of ballistic missiles capable of carrying nuclear warheads and of drone systems of delivery of weapons of mass destruction.
This regime was established as an additional measure to the mechanisms envisaged by the NPT. At a meeting of 1992, the participants agreed to extend the scope of application of the MTCR to include missiles and drones capable of carrying chemical and biological weapons.
Since 1995, Ukraine implements state export control procedures on the national level and the relevant goods lists envisioned by the guidelines of the regime. However, Ukraine actually became a member of this organization in 1998 only.
Under the MTCR, a mutually-agreed list is used of materials, equipment and dual-use technologies that may be used to create missiles.
With regard to the finished missile systems and facilities for their production (Category I on the List), the “refusal as a rule” principle is established. Transfers of separate systems of such missiles for their production may be performed only subject to the appropriate consultations with the partners.
The regime participants hold regular consultations with a view to ensuring the operation of the regime.
The MTCR list includes finished missile systems and drones capable of delivering destructive payload over 500 kg over a distance more than 300 km as well as production facilities for such systems. Aside from that, the list includes some sensitive materials and technologies that may be used to manufacture missiles with a radius over 300 km.
Thirty-five countries participate in the international Missile Technology Control Regime, namely: Australia, Austria, Argentina, Belgium, Bulgaria, Brazil, United Kingdom, Greece, Denmark, India, Ireland, Iceland, Spain, Italy, Canada, Luxembourg, Netherlands, Germany, New Zealand, Norway, South Africa, Poland, Portugal Republic of Korea (South), Russian Federation, United States of America, Turkey, Hungary, Ukraine, Finland, France, Czech Republic, Switzerland, Sweden, and Japan.
Wassenaar Arrangement
The Wassenaar Arrangement is an international agreement reached to establish control over conventional armaments (military-purpose goods, the “MPG”) and the dual-use items related to them (the “DUI”).
An official announcement of the establishment of the Wassenaar Arrangement was made on December 19, 1995, after an appropriate meeting that was held at the highest level and was attended by 28 countries. This was a first multilateral regime that covered both conventional arms and sensitive dual-use items related to them.
The establishment of a new regime was officially declared in Hague.
On April 2-3, 1996, Argentina, the Republic of Korea and Romania joined the regime, and Bulgaria and Ukraine as founding members joined it on July 11-12, 1996.
Officially, the WA began functioning since July 1996 as a regime established by 33 states that reached a consensus concerning initial WA elements (the main WA document) and approved the decision on the introduction since November 1, 1996, at the national levels of Control Lists and information sharing procedures.
The press release emphasized the fact that this arrangement would not be targeted against any specific state or a group of states and would not prevent honest civil transactions. Also, it was emphasized in there that it would not interfere with the right of the states to buy legal means intended to ensure their self-defense in accordance with Article 51 of the UN Charter, while the decisions to transfer or not to transfer any item would be a responsibility of each member state.
The WA has the following objectives: to foster regional security and stability, to promote transparent transfers of conventional arms and dual-use items related to them, to attain the assumption by the member states of the appropriate commitments regarding the procedures for transferring such goods. This organization promotes an increase in the level of cooperation among member states with a view to preventing the purchase of weapons and sensitive dual-use items for the purposes of military end use where the regional situation or actions of the country receiving these items causes serious concerns by WA member states.
WA member states approved a document that sets the rules for exporting small arms and light weapons. These rules include the elements of the UN Program of Action to Prevent, Combat and Eradicate the Illicit Trade in Small Arms and Light Weapons in All Its Aspects and of OSCE document of 2001 entitled “Document on Small Arms and Light Weapons.”
Recognizing the threats posed by unauthorized proliferation and use of Man-Portable Air-Defense Systems (MANPADS), especially to civil aviation, peacekeeping, crisis management and counter-terrorism operations, the WA member states apply strict national controls over MANPADS exports since 2000.
These controls are based on the document “Export Control Elements of Man-Portable Air-Defense Systems (MANPADS)” approved by WA Plenum.
The supplemented the already existing international regimes of control over non-proliferation of weapons of mass destruction (the “WMD”).
Control over international transfers of conventional armaments and dual-use items under the WA is exercised in accordance with the guidelines (Initial Provisions) and the approved lists of the relevant goods.
The states that acceded to the WA agreed to carry out a voluntary and confidential sharing of sensitive information on exports and imports of goods and hold consultations on the matters of transferring the MPG and certain categories of DUI as well as promote mutual understanding, given the possible risks of such transfers.
As part of their international commitments that arise from their participation in the WA, the participating states every six months post reports on transfers or refusals to transfer certain goods to the states that are not WA participants on the Regime Information System, namely:
the issued permits to export certain categories of conventional arms (these categories are reportable to the UN Register of Conventional Weapons, including small arms and light weapons) that have been included in the WA List of Military-Purpose Goods;
the issued permits or performed international transfers of “sensitive” and “very sensitive” goods included in the WA List of Dual-Use Goods and Technologies;
refusals to issue permits for the transfer of goods included in the WA List of Dual-Use Goods and Technologies;
refusals to issue permits to export “sensitive” and “very sensitive” goods included in the WA List of Dual-Use Goods and Technologies;
the issued permits for the performance of essentially identical transfers of “sensitive” and “very sensitive” goods included in the WA List of Dual-Use Goods and Technologies that had been an object of refusal by another participating state during the prior three-year period.
Licensing procedures for international transfers of goods are performed pursuant to national laws of the Parties.
The WA foundations are the relevant control lists of military-purpose and dual-use goods.
As of April 2021, 42 countries participate in the Wassenaar Arrangement international export control regime. Australia, Austria, Argentina, Belgium, Bulgaria, Great Britain, Greece, Denmark, Estonia, India, Ireland, Spain, Italy, Canada, Latvia, Lithuania, Luxembourg, Malta, Mexico, Netherlands, Germany, New Zealand, Norway, South Africa Republic, Poland, Portugal, Republic of Korea (South), Russian Federation, Romania, Slovakia, Slovenia, United States of America, Turkey, Hungary, Ukraine, Finland, France, Croatia, Czech Republic, Switzerland, Sweden and Japan.
Australia Group
The basic documents in the field of non-proliferation of chemical and biological weapons are the Protocol for the Prohibition of the Use in War of Asphyxiating, Poisonous or Other Gases, and of Bacteriological Methods of Warfare (Geneva Protocol), the Convention on the Prohibition of the Development, Production and Stockpiling of Bacteriological (Biological) and Toxin Weapons and on their Destruction (BWC) and the Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on their Destruction (CWC).
The Geneva Protocol was entered into and signed in 1925 on the initiative of the League of Nations. It prohibited the use in war of asphyxiating, poisonous or other similar gases as well as bacteriological means of warfare. The Protocol created an obstacle to using chemical and biological weapons but did not provide for a prohibition on developing, manufacturing and stockpiling such weapons of mass destruction. Later, negotiations concerning such types of weapons continued and resulted in the entry into international treaties on the prohibition of biological weapons of 1972 and on the prohibition of chemical weapons of 1992.
The Convention on the Prohibition of the Development, Production and Stockpiling of Bacteriological (Biological) and Toxin Weapons and on their Destruction (BWC) was opened for signature in 1972 and entered into effect in 1975. It was the first international document aiming to prevent proliferation of biological weapons. The participant countries of the Convention undertake not to develop, produce, buy and keep microorganisms that are especially dangerous for humans, animals and plants and that are not intended for peaceful use (conducting science research, implementing preventive, protection and other measures) as well as equipment and means of delivery that are intended for using such microorganisms in armed conflicts or in any illegal actions. Aside from that, the BWC provides for a destruction of the microorganisms, equipment and means of delivery that the participant state already has, which is the subject of the Convention, or a redirection of such biological material for peaceful use. Participant states also undertake not to transfer biological weapons and goods that may be used for their creation to other states and international organizations and not to aid in the purchase of such items, neither to encourage it. At the same time, they undertake to cooperate for peaceful purposes and observe the provisions of the Convention, while not restraining the economic and technological development of the state.
The BWC does not have provisions to prohibit new types of biological weapons that may result from the development of biotechnologies, genetic engineering, microbiology and other biological sciences. It means that it does not cover genetically modified organisms that have some changed characteristics which may be dangerous and therefore allow the use of these organisms in the creation of biological weapons.
The BWS has effect for an unlimited term but this international document has a lower effectiveness because it does not have a verification mechanism for compliance with the provisions of the Convention. Neither does it have a list of prohibited biological agents and goods that are subject to state control. In this connection, the Convention participants apply some effort to establish such a mechanism. Presently, the participant states have developed the so-called “trust measures.” The measures envision a voluntary annual provision by all participant states, including Ukraine, to the United Nations of information about their performance of the obligations provided by the BWC (about the works that are performed in the biological field, the publications, the programs, national legislation etc.).
As of April 2017, 178 countries were BWC participant countries. Six (mostly African) countries signed the Convention but not yet ratified it.
In 1992, the UN General Assembly approved draft Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on their Destruction (CWC) aiming to supplement the Geneva Protocol concerning a total prohibition of chemical weapons, inadmissibility of their proliferation and reproduction in the future. It was open for signature one year later. After the CWC was ratified by 65 states, the Convention entered into effect in 1997. Similar to the BWC, the Convention has legal effect indefinitely.
Pursuant to the Convention, it is prohibited to produce, possess and use chemical weapons. All participant states of the Convention are required to destroy their existing stocks of chemical weapons (if available). Enforcement of this prohibition and all the activities related to the destruction of chemical weapons are controlled by the Organization for the Prohibition of Chemical Weapons (the “OPCW”), which was specifically established for this purpose and has its headquarters in Hague (the Netherlands).
Additionally, the Convention governs the production, processing and consumption of chemicals that are the substances categorized as chemical weapons as well as the substances that may be used in their production (these are the so-called dual-use chemicals that have a fully civil purpose). The said categories of chemicals are listed in the Chemicals Annex to the Convention. Depending on the hazard posed by the chemical, it is included in one of the three Chemicals Lists of the Annex:
List 1 – the chemicals that had been used as chemical weapons in the past; they have a very limited peaceful use and pose a high level of hazard; they are subject to strict controls including the imposition of a restriction on the maximum volume of production;
List 2 – the chemicals that are mostly precursors to the List 1 chemicals, most of them are used in industry and they pose a significant hazard in view of the objectives of the Convention;
List 3 – the chemicals that pose a certain hazard because they also may be used in the production of chemical weapons, however, they are produced in large quantities for commercial purposes and are widely used in the chemical industry.
The OPCW also performs checks of production facilities and of the immediate production of chemical substances, where such chemical substances are of dual use and may be used in the creation of chemical weapons. A certain number of Ukrainian civil chemical industry facilities, which operations are regulated by the provisions of the Convention, is subject to OPCW inspections.
In accordance with the CWC requirements, government control shall cover transfers (both domestic and international) of the chemicals that are included in the Annex.
The participant states shall provide information about certain transfers of chemicals to the OPCW.
The CWC has an important provision envisaging international cooperation in the field of peaceful use of chemical substances.
It was planned to destroy chemical weapons during the 10 years after the Convention entered into effect, however, as some countries could not abide by this deadline, the participant states decided to extend it. In the near term, this task remains a priority, given the fact that the destruction of chemical weapons is carried out in violation of the established deadlines (mostly for economic reasons).
By the present time, the CWC has been ratified by most world countries (as of April 2017, there were 192 countries), including Ukraine that ratified the Convention in 1998.
The so-called Australia Group (the “AG”) was established in 1985 for the participant countries to implement uniform rules of control over exports of goods that may be used in the creation of chemical or biological weapons, including “agents” and “precursors” of such weapons. The use of chemical weapons (the “CW”) during the Iran-Iraq war of 1980-1988 caused a great concern of the world community and served the main reason of creating Australia Group.
The participant states in this informal group cooperate on the matters of supporting and developing the national export control systems. This cooperation aims at preventing further export of chemical products that may be used or redirected for use under the programs of creating chemical or biological weapons.
The AG has approved the activities guidelines and a number of Lists that determine chemical precursors, biological substances, chemical and biological equipment of dual use as well as the relevant technologies. The participant states assumed political obligations to ensure national control over exports of the said products.
Since 1997, Ukraine implemented the rules and lists recommended by this regime at the national level and, in April 2005, it acquired membership in the Australia Group regime.
As of April 2021, 42 countries participate in the Australia Group international export control regime. Australia, Austria, Argentina, Belgium, Bulgaria, United Kingdom, Greece, Denmark, Estonia, India, Iceland, Ireland, Spain, Italy, Canada, Cyprus, Latvia, Lithuania, Luxembourg, Malta, Mexico, Netherlands, Germany, New Zealand, Norway , Poland, Portugal, Republic of Korea (South), Romania, Slovakia, Slovenia, United States, Turkey, Hungary, Ukraine, Finland, France, Croatia, Czech Republic, Switzerland, Sweden, and Japan.
1.2. A brief overview of national legislation
In accordance with Article 1 of the current Customs Code of Ukraine (the “Code,” the “CCU”), customs legislation of Ukraine consists of the “Constitution of Ukraine, this Code, other laws of Ukraine governing the matters listed in Article 7 of this Code, the international agreements of Ukraine ratified by the Verkhovna Rada of Ukraine as well as of the regulations issued based on and in execution of this Code and other legislative acts.”
The central executive authority whose activities are directed and coordinated by the Cabinet of Ministers of Ukraine and which implements the government customs policy in the field of fighting violations of legislation during the application of customs laws is the State Customs Service of Ukraine (the “State Customs”).
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See the details on the tasks set before the State Customs Service in Section 2.2 of this Handbook.
Customs control and customs clearance of goods that are subject to state export control are governed by the provisions of the Customs and Tax Codes, laws and other legal and normative legal acts of Ukraine that regulate the issues of international transfers of goods that are subject to state export control and of the performance of customs control and customs clearance procedures.
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See the detailed information on customs clearance of controlled goods in Section 2.4 of this Handbook.
Additionally, Article 197 of the Customs Code provides that in the cases provided by law, restrictions on the movement of certain goods across the customs border of Ukraine are established. The entry of such goods into the customs territory of Ukraine and/or their exit, depending on the requirements of relevant laws, shall be ensured by customs authorities based on the relevant authorization documents and/or information about the inclusion (deletion) of the relevant good in (from) the relevant register. Such documents shall have the form of electronic documents, authenticated by an electronic digital signature and shall be obtained from state authorities, other institutions and organizations authorized to exercise authorization or control functions with respect to moving goods across the customs border of Ukraine. Such documents are to verify the compliance with the established restrictions on the moving of such goods across the customs border of Ukraine, if the use of such authorization documents and/or information for the performance of customs formalities is provided by laws of Ukraine.
However, part 2 of the said Article also establishes that the “State Customs Service of Ukraine shall determine the UKT ZED codes of the goods that are subject to a restriction on moving them across the customs border of Ukraine in the relevant direction. This authority shall post the relevant information on its official website and on the Single Window for International Trade single state web portal for information queries.
With regard to the above, customs authorities shall perform the formalities provided by law that are necessary for the passage across the customs border of Ukraine of goods nomenclature of dual use with full observance of regulations in the field of export control and interact in such a manner with the State Service of Export Control of Ukraine that is the specially authorized authority for the implementation of the state export control policy.
In accordance with Resolution of the Cabinet of Ministers of Ukraine of March 31, 2015, No. 159 “On Approving Regulation on the State Service on Export Control of Ukraine,” the State Service of Export Control of Ukraine (the “State Export Control”) is the central executive authority whose activities are directed and coordinated by the Cabinet of Ministers of Ukraine through the First Vice Prime Minister of Ukraine - Minister of Economy who is implementing the government policy in the field of government export control.
The legislative framework in the field of state export control is made up of the Constitution of Ukraine, other laws of Ukraine, acts of the President of Ukraine and of the Cabinet of Ministers of Ukraine, other normative legal acts as well as international agreements of Ukraine ratified by the Verkhovna Rada of Ukraine.
The current list of regulations that determine the procedure for control over international transfers of dual-use items (military-purpose goods) is posted on the official website of the State Service of Export Control of Ukraine.
In the following chapters, we are going to consider legislative acts that establish customs control and customs clearance procedures for dual-use goods as part of export control procedures.
The main act of national legislation in this field is Law of Ukraine No. 549-IV of February 20, 2003, "On State Control for International Transfer of Military and Dual-Use Goods” (the “Law No. 549-IV”).
This Law covers the activities related to international transfers of goods, including the provision of intermediary (brokerage) services, production, science and technical and other cooperation, demonstration of goods as exhibits at international trade shows and exhibitions for advertising purposes, performing tests, trade and their exchange transactions.
Aside from that, the Law provides a number of operations that are outside its scope of application, in particular, concerning the movement of goods in connection with measures taken by military units, law enforcement bodies, Ukraine’s civil defense bodies and units outside its borders or by military detachments of the armed forces of other states in the territory of Ukraine in accordance with international agreements of Ukraine, if they envision special mechanisms for control over movement of such goods; international transfers of gas-operated, sports or hunting weapons, weapons that are equipped with rubber or similar by their qualities projectiles that are non-lethal, other weapons that are covered by the authorization system for the circulation of such weapons as well as the component parts, bullets and ammunition for them etc.
The Law sets forth some terms that one must know when performing customs procedures with dual-use items, including:
dual-use items shall mean individual types of articles, equipment, materials, software and technologies that are not specifically intended for military use as well as services (technical assistance) related to them which, apart from their civic use, may be used for military or terrorist purposes or for the development, production and use of military-purpose goods, of the weapons of mass destruction, the means of delivery of the weapons of mass destruction or nuclear explosive devices, including certain types of nuclear materials, chemical substances, bacteriological, biological and toxic preparations whose list shall be determined by the Cabinet of Ministers of Ukraine;
- technical data – blueprints, plans, drawings, layout, diagrams, models, formulas, specifications, software, manuals and instructions on paper or other media, including electronic;
- technical assistance – holding briefings and consultations, taking professional development and training measures as well as those to study the work methods in practice;
- underlying technologies – the technologies that determine the principle of operation and use of equipment as well as technology elements without which military equipment cannot be created and used;
state export control shall mean a set of measures to exercise control over international transfers of goods and their use by the legal entity or individual that is exercised by the central executive authority implementing the government policy in the field of state export control and other state authorities with a view to safeguarding national security interests and in accordance with Ukraine’s international commitments;
During 2018-2019, some changes were introduced to Ukrainian legislation that were intended to simplify customs control and customs clearance procedures for the business entities engaged in foreign economic activity by automating the mechanisms of declaring the goods using electronic services. For example, the Single Window mechanism was implemented in this context in the course of moving goods across the customs border of Ukraine as well as changes were introduced to the Customs Code of Ukraine and Law No. 549-IV.
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See the detailed information on customs clearance procedures in Single Window regime in Section 3.2 of this Handbook.
In accordance with Article 21 of the Law, the customs authorities shall perform customs formalities required for the passage across the customs border of Ukraine and the placement under an appropriate customs regime of military-purpose and dual-use goods based on the appropriate authorization document for the performance of international transfers of goods obtained from the central executive authority implementing the government policy in the area of state export control using the Single Window mechanism.
Part 3 of Article 21 provides that “at the request of the importer of the goods that may be submitted, in particular, using the Single Window mechanism, the customs authorities shall issue a delivery confirmation certificate that would attest to the fact of arrival in Ukraine of the goods specified in the said certificate. The applicant may choose the issuance of the delivery confirmation certificate in the paper format or as an electronic (scanned) copy of a paper document certified by the electronic digital signature using the Single Window mechanism.
It means that, starting April 2019, it is possible to submit the authorization document issued by the State Service of Export Control of Ukraine for the performance of international transfers of military-purpose and dual-use goods for customs clearance purposes only electronically, with a digital signature and using the Single Window facility only.
However, presently work continues to improve normative and legal interaction between the State Service of Export Control of Ukraine and the State Customs Service, in particular, concerning a determination of the best mechanisms for the automated processing of information in the course of exercising control over the movement across the customs border of Ukraine of military-purpose and dual-use goods.
In accordance with Article 8 of the Law of Ukraine No. 549-IV, the Cabinet of Ministers of Ukraine introduced the Procedure for State Control Over International Transfers of Dual-Use Goods (Resolution of the Cabinet of Ministers of Ukraine of January 28, 2004, No. 86 “On Approving the Procedure for State Control over International Transfers of Military-Purpose Goods”).
The Procedure sets forth the procedures for the exercise of state control over international transfers of dual-use goods included in the Unified List of Dual-Use Goods and the goods not included in the Unified List of dual-use Goods in the cases provided by Article 10 of the Law of Ukraine “On Government Control over International Transfers of Military-Purpose and Dual-Use Goods.”
An international transfer of goods may be performed by the business entity performing international transfers of goods or a foreign business entity, provided the latter has the appropriate authorization or a conclusion of the State Service of Export Control of Ukraine.
The authorization or a conclusion of the State Service of Export Control of Ukraine entitling its holder to perform the relevant international transfer of any dual-use item, equipment or material shall be the ground to provide the importer (end consumer) with a set of technical documents (technical data) that are required to adjust, operate and use such goods to their intended purpose within the scope defined by this authorization or conclusion.
During customs clearance of goods, the entity or foreign entity shall submit the relevant authorization or a conclusion of the State Service of Export Control of Ukraine along with other documents necessary for the performance of customs control and customs clearance of goods in accordance with law.
The said Procedure does not permit exporting individual goods to the states subject to an export embargo on such goods imposed by the UN Security Council and also in the case where the results of an expert review in the field of state export control show that there are grounds to believe that the goods are intended for the following:
- creation of the weapons of mass destruction or means of their delivery;
- use for terrorist or other illegal purposes;
- use as part of the activities related to the creation of nuclear explosive devices or as part of the activity related to the nuclear fuel cycle that is not subject to the IAEA Safeguards;
- use as part of the activities related to the acquisition, creation, accumulation or application of chemical weapons as a means of warfare;
- use in the activity related to the acquisition, creation, accumulation or application of the pathogens of diseases and toxins of both bacteriological (biological) and toxin weapons or their components;
The relevant obligations concerning individual groups of dual-use items are specifically described in accordance with subparagraph 2 of paragraph 19 of this Procedure.
It is also worth noting that, on May 17, 2021, the Cabinet of Ministers of Ukraine approved Resolution No. 482 “On the Introduction of Changes to the Procedure for Government Export Control over the Conduct of Negotiations Related to the Entry into Foreign Economic Agreements (Contracts) on the Export of Goods” that took effect on 06/20/2021.
This act was passed to bring the Procedure for Government Export Control over the Conduct of Negotiations Related to the Entry into Foreign Economic Agreements (Contracts) on the Export of Goods approved by Resolution of the Cabinet of Ministers of Ukraine of 06/06/2012 No. 500 into compliance with Article 18 of the Law of Ukraine "On Government Control over International Transfers of Military-Purpose and Dual-Use Goods,” Article 5 of the Law of Ukraine “On Sanctions” and to update the list of the participant states in international export control regimes and supplement the list of recommended clauses to include in foreign economic agreements (contracts) with special guarantees.
Today Ukraine participates in all five active international export control regimes. In accordance with its obligations assumed under these regimes and approved control lists, Ukraine ensures proper control over international shipments of controlled goods, nuclear and special non-nuclear materials, equipment and facilities for their production as well as individual types of other materials, equipment, software and technologies that may be used in the creation of nuclear weapons or nuclear explosive devices, materials, equipment and dual-use technologies that may be used in the creation of chemical and biological weapons.
Section 2 Structure of the Customs Service and functions of its structural divisions
The customs policy, its formulation and implementation are an important element of state’s activities virtually at all stages of its development. To use the customs tool the most effectively, the customs system requires the establishment of a robust and effective management vertical that would primarily ensure state interests.
After resigning from the USSR, Ukraine embarked on the path of an independent integration with the world community and with the world economic relations, aiming to take its own place amongst world countries. A refocusing towards the establishment of international cooperation required a reorganization and establishment of new state institutions and structures, harmonizing its peaceful sphere with the European principles.
When a transition to market conditions occurs, a customs authority is a regulator of state relations under the conditions of transformation processes. A separate attention in the future was claimed by the performance of Ukraine’s commitments in the field of international export control arrangements and by the national interests of the state concerning the transfer of military-purpose and dual-use goods and technologies.
As of today, after passing several stages of establishment and reorganization, the State Customs Service of Ukraine is the authority that implements the customs policy of Ukraine. This is an aggregation of specially authorized executive authorities that protect the economic interests of the state by means of exercising customs control and customs clearance of goods that are moved across the border, levying customs duties, counteracting smuggling and violations of customs rules.
One may single out the following main fields of Ukraine’s customs policy:
– developing the system of state regulatory bodies in the field of customs;
– setting the amounts of duties and the conditions for charging those duties;
– establishing free customs areas and customs regimes in the territory of Ukraine;
– determining the list of goods that are prohibited to export, import and transit across the territory of Ukraine.
The following three main functions are entrusted to the bodies of the Customs Service of Ukraine:
1. the fiscal function that is to collect duties on export and import transactions and the function of drawing up documents of legal entities and individuals that are subject to customs duties;
2. information that envisages the collection and processing of information and dissemination of statistical data to the appropriate state entities;
3. the law enforcement function that is carried out by fighting crime and, primarily, smuggling.
As such, the State Customs Service was established specifically to implement the customs policy as a component of the government policy, while using measures of tariff and non-tariff regulation provided by law. The State Customs Service is an integral part of the central executive authorities and is charged with the task of implementing the customs policy.
Given the utmost importance of customs policy for the state, the regulations provide that the highest bodies of state power and administration govern customs in Ukraine: the President of Ukraine, the Verkhovna Rada of Ukraine, and the Cabinet of Ministers of Ukraine. At the initial states of customs service development, the legislative and executive branches of power had the prerogative; however, at later stages the President of Ukraine now governs the State Customs Service of Ukraine.
Given any historical conditions of the existence of states and the differences in their forms of governance, political systems and regimes, customs has always been an obligatory attribute that played an important role in the mechanism of formulation and implementation of the customs policy of the state.
2.1. Stages of development and establishment of customs in the independent Ukraine
The development of customs policy is related to the strategy of the state, its goals and objectives both in the external and domestic markets. When analyzing the development of customs and customs policy of the Ukrainian state, one must also understand the basis on which it was built after country’s independence.
During the period of foreign economic reform (1986 – 1991), the USSR launched a new stage of development of state customs. Its peculiarities were related to an attempt to transform the old model of the state monopoly policy to a policy oriented at the economic model of regulating foreign trade under free market conditions. In March 1991, a new Customs Code of the USSR was approved that entered into effect on July 1 of the same year.
After the collapse of the USSR, Ukraine’s customs system inherited 26 customs offices and 49 customs stations (for comparison: after the completion of the first stage of customs development in Ukraine in 1996, the country already had 10 regional customs offices, 42 customs offices, 195 customs stations, 12 specialized customs institutions like the following: customs laboratories, educational institutions etc.).
By their organization and structure, five key stages of customs establishment in Ukraine may be singled out:
Stage I: development of the national customs system as part of activities of the State Customs Committee of Ukraine (1991-1996);
Stage II activities of the State Customs Service of Ukraine (1996—2012);
Stage III functioning of customs bodies within the structure of the Ministry of Revenue and Duties of Ukraine (2012—2014);
Stage IV reorganization of the Ministry of Revenue and Duties of Ukraine into the State Fiscal Service of Ukraine that included the customs authorities (2014—2019);
State V: New customs (2019 to present).
Each of these stages had its peculiarities that evidently were determined by approaches to state regulation of the economy sector, the domestic political situation in Ukraine, the priorities that businesses had regarding their foreign economic operations and the overall trends of market economy development. Let us mark some important developments that occurred during the mentioned stages.
For example, a landmark event in the history of domestic customs of independent Ukraine was the reorganization of the Department of State Customs Control under the Council of Ministers of the USSR and establishment on its basis of the State Customs Control Committee of Ukraine.
December 11, 1991 The State Customs Control Committee of Ukraine is renamed to State Customs Committee of Ukraine and, in fact, becomes the first central executive authority of Ukraine in the customs field and is subordinated to the Cabinet of Ministers of Ukraine. June 25, 1991 The Verkhovna Rada of the USSR approves the Law “On Customs in the Ukrainian SSR” while the Customs Code of Ukraine takes effect on December 12, 1991.
On February 5, 1992, the Law of Ukraine “On Unified Customs Tariff” was approved and the customs tariff documents were drafted.
At Stage II, the State Customs Service of Ukraine was established (November 29, 1996) as a central executive authority. This stage of the functioning of the State Customs Service of Ukraine was characterized by an improvement in the organization structure, a refocusing from the territorial principle to the regional one, a reduction in the number of customs offices and customs stations (from 69 to 55 and from 268 to 199 respectively), the introduction of elements of customs risk management, the improvement of the information and analytical work in the customs field, the strengthening of customs control and the fight against smuggling, further development of the international field of work of customs authorities and the approximation of customs legislation to the European standards. In particular, on July 22, 2002, a new Customs Code was approved that enshrined the main provisions of a number of international conventions and agreements on customs in national legislation, including GATT/WTO.
Structure and organization changes occurred within the system of customs authorities of Ukraine during 2012 – 2018. December 18, 2018 The Cabinet of Ministers of Ukraine created the State Tax Service (STS) and the State Customs Service (SCS) through a reorganization of the State Fiscal Service by dividing its functions.
At this stage, the Cabinet of Ministers of Ukraine, in October 2019, approved the regional structure of customs (by reducing the number of customs offices from 26 to 16) and approved the draft law that envisioned the incorporation of customs bodies as a single legal entity.
In July 2019, an action plan was approved for reforming the authorities implementing the tax and customs policies. The action plan envisaged an optimization of the structure, an improvement of procedures, the fostering of the use of information technologies and other tasks.
On June 30, 2021, as part of the implementation of the described plan, the State Customs Service of Ukraine issued Order No. 472 “On Beginning of the Exercise by Customs Offices as Detached Divisions of the State Customs Service of Ukraine of the Functions and Powers Charged With Them for Implementing the State Customs Policy and the State Policy in the Field of Fighting Violations of Law in the Course of Applying Customs Legislation.” This Order marked a transition by the Customs to carrying out its activities as a unified legal entity.
The creation and development of the customs policy of the Independent Ukraine resulted in the fact that today Ukraine, in carrying out its customs affairs, abides by the internationally recognized goods classification and coding systems as well as a unified format for declaring goods exports and imports, the methods of determining the customs value of goods, the customs statistics systems and other rules and standards generally accepted in the international practice.
2.2. Peculiarities, objectives and tasks of customs in Ukraine
Customs Authorities of Ukraine
Customs Authorities of Ukraine are an aggregation of executive authorities that protect economic interests of Ukraine by exercising customs control and customs clearance of goods that are moved across the border, levy customs duties, counteract smuggling and violations of customs regulations.
Customs authorities aim to create favorable conditions for the development of foreign economic activity, ensure security of the society and protect customs interests of Ukraine.
In carrying out customs affairs, customs authorities perform the following main tasks:
- ensuring the correct application, steadfast observance and prevention of non-observance of the requirements of customs legislation of Ukraine;
- ensuring the performance of the commitments envisioned by international agreements of Ukraine on customs;
- creating favorable conditions for facilitating trade and transit, increasing goods turnover and passenger throughput across the customs border of Ukraine; ensuring the performance of measures jointly with customs authorities of other states to improve the procedures for the passage of goods and vehicles across the customs border of Ukraine as well as customs control and customs clearance of such goods;
- performing customs control and customs formalities with respect to the goods and commercial vehicles that are moved across the customs border of Ukraine including based on electronic documents (electronic declarations) using technical means of control etc.;
- performing risk analysis and management with a view to determining the forms and scope of customs control;
- ensuring the levy of customs duties, control over correctness of calculation and timeliness and completeness of their payment, applying the enforcement measures to recover them within the scope of authority delineated by the Customs Code, the Tax Code of Ukraine and other acts of legislation of Ukraine, organizing the application of guarantees for payment of customs duties, interacting with bank institutions and independent financial intermediaries providing such guarantees;
- applying customs tariff and non-tariff measures of regulation of foreign economic activities provided by law, exercising control over observance by all foreign economic activity entities and citizens of the prohibitions and restrictions imposed by law on the movement of certain types of goods across the customs border of Ukraine; the taking of measures to prevent the movement across the customs border of Ukraine of certain types of goods; the taking of measures to prevent the movement across the customs border of Ukraine of the goods that are subject to prohibitions and/or restrictions concerning their movement across the customs border of Ukraine as well as the goods that do not meet the requirements as to their quality and safety;
- the exercise of state export control within the scope of authority granted to the customs authorities in accordance with the Customs Code and other laws of Ukraine;
- the exercise of control over observance of regulations for the movement of currency valuables across the customs border of Ukraine;
- the promotion of protection of intellectual property rights and the taking of measures to prevent the movement across the customs border of Ukraine of the goods that infringe upon intellectual property rights protected by law, the prevention of the movement across the customs border of Ukraine of counterfeit goods;
- the prevention of and counteraction to smuggling, fighting against violations of customs regulations in the entire customs territory of Ukraine;
- the taking within its scope of authority of control measures over the activities of enterprises that provide services of declaration, transportation and storage of goods that are either moved across the customs territory of Ukraine or are under customs control as well as perform other operations in such goods; the issuance of permits to carry out the said types of activities; the issuance of the authorization of an Authorized Economic Operator (the “AEO”);
- the maintenance of the Ukrainian Classifier of Foreign Economic Activity Goods;
- the maintenance of statistics and customs statistics data sharing with customs authorities of other countries;
- performing a verification (an establishment of authenticity) of certificates of origin of goods from Ukraine and issuing certificates of origin in the cases provided by current international agreements;
- sharing documents and information (including electronic) with other state authorities of Ukraine as well as customs, law enforcement and other bodies of foreign states;
- implementation, development and technical support of information, telecommunication and information and telecommunication systems and technologies in customs as well as automation of customs services;
- carrying out international cooperation in the field of customs and attracting external resources to support the activities of customs authorities;
- the exercise of other powers established by law that are entrusted to the customs authorities.
As of today, the customs authorities of Ukraine are the following bodies:
- the State Customs Service of Ukraine;
- Customs Offices;
- Customs Stations;
- Specialized educational institutions and the science research establishment of the customs authorities.
Let us dwell in more detail on each customs authority.
State Customs Service of Ukraine
The State Customs Service of Ukraine is a central executive authority whose activities are directed and coordinated by the Cabinet of Ministers of Ukraine through the Minister of Finance.
The State Customs Service implements the state customs policy, the state policy in the field of fighting violations of law in the course of applying legislation on state customs.
In its activities, the State Customs Service is governed by the Constitution and laws of Ukraine, acts of the President of Ukraine and Resolutions of the Verkhovna Rada of Ukraine approved in accordance with the Constitution and laws of Ukraine, acts of the Cabinet of Ministers of Ukraine and other legislative acts.
The main powers of the State Customs Service of Ukraine shall be:
1) ensuring the implementation of the state customs policy, in particular, ensuring the customs security and protection of customs interests of Ukraine as well as the establishment of favorable conditions for the development of foreign economic activities as well as maintaining a proper balance between customs control and facilitation of legitimate trade;
2) ensuring the implementation of the state policy in the field of fighting violations in the course of applying legislation on state customs, preventing and counteracting smuggling, fighting violations of customs regulations;
3) introducing proposals regarding the formulation of the state customs policy for consideration by the Ministry of Finance.
The following entities are subordinated to the State Customs Service: customs offices, specialized customs bodies and customs organizations, specialized educational institutions and the science research institution of the Customs Service of Ukraine.
The main tasks of the Customs Service of Ukraine include the following:
1) summing up the practices of applying the laws that pertain to the competences of the State Customs Service, submitting proposals in accordance with the established procedure for consideration by the Minister of Finance regarding the improvement of legislative acts, the acts of the President of Ukraine and the Cabinet of Ministers of Ukraine, normative legal acts of central executive authorities, orders of the Ministry of Finance as well as submitting a position to the Minister of Finance regarding draft normative legal acts developed by other central executive authorities;
2) control over observance of the requirements of legislation on state customs in the course of the movement of goods across the customs border of Ukraine and after completing the customs control and customs clearance operations in the entire territory of Ukraine, including the free customs areas, territorial sea, state border checkpoints, frontier strip and controlled boundary regions, the exclusive (marine) economic zone of Ukraine and the adjacent territory of Ukraine;
3) taking measures to promote the protection of intellectual property rights in the course of performance of foreign economic activities, preventing the movement across the customs border of Ukraine of counterfeit goods;
4) control over observance by enterprises and citizens of the requirements of legislation on the exercise of state control over international transfers of military-purpose and dual-use goods;
5) the prevention of and counteraction to smuggling, fighting against violations of customs regulations in the customs territory of Ukraine;
6) the verification of legal entities for their meeting the criteria for the granting of a guarantor status, the granting of a guarantor status and maintaining the guarantor register; the admission of resident transport operators to providing transportation services in accordance with the Customs Convention on the International Transport of Goods under Cover of TIR Carnets (TIR Convention) of 1975;
7) the taking of measures, in particular, together with other state authorities and customs authorities of other states, concerning an integrated border management, improvement of the procedure for the passage across the state border of goods and vehicles, the performance of customs formalities in accordance with the requirements of legislation on state customs;
8) control over delivery of goods that are under customs control to the customs offices of destination; the setting up of a list of delivery destinations;
9) the issuance of permits for carrying out customs brokerage activities, the opening and operation of customs warehouses, temporary storage warehouses, duty-free shops, cargo customs facilities, free customs areas of a commercial or service type;
10) control over correctness of determining the customs value of goods in accordance with legislation on state customs as well as over correct classification and definition of the country of origin of the goods that are moved across the customs border of Ukraine, including after completion of customs control and customs clearance operations; interaction with customs administrations and other authorized bodies of foreign states on checking the authenticity of documents that were submitted to support the declared customs value, classification and the country of origin of the goods;
11) development, implementation and technical support of information, telecommunication and information and telecommunication systems and technologies, the automation of procedures, in particular, control over completeness and correctness of performing customs formalities; implementation of electronic services for business entities; ensuring the functioning of the Single Window for International Trade unified state information web portal;
12) analysis and management of risks with a view to determining the forms and scope of customs control, ensuring the monitoring of high-risk foreign economic operations to manage the risks, in particular, by targeting and initiating additional customs control measures involving some mobile groups to include officials and employees of the back office of the State Customs Service and its territorial bodies.
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Section6 of this Handbook has more detailed information about using the ASAUR Automated System for Risk Analysis and Management in performing customs control procedures.
13) other powers provided by law.
Customs Offices
The customs office shall be a customs body that shall ensure the performance of tasks charged with customs authorities in the area of its operations. Customs is a territorial body that implements the state customs policy, has an independent balance sheet and accounts with the bodies providing the treasury services of the budget funds; it has a seal and a letterhead with the image of the State Emblem of Ukraine and its own name. It shall act in accordance with the Constitution of Ukraine, the Customs Code, and other normative legal acts and pursuant to the regulation to be approved by the order of the State Customs Service.
The customs office shall carry out its activities in the territory of the relevant administrative and territorial unit (the Autonomous Republic of Crimea; oblast; cities of Kyiv and Sevastopol). Individual customs offices may carry out their activities in the territories of two and more administrative and territorial units or in the entire territory of Ukraine.
As of today, 16 regional customs offices of the State Customs Service have been established:
- Azov Customs (Donetsk Oblast);
- Bukovyna Customs (Chernivtsi Oblast);
- Volyn Customs (Volyn Oblast);
- Galician Vustoms (Ivano-Frankivsk, Lviv, and Ternopil Oblasts);
- Dnipro Customs (Dnipropetrovsk, Zaporizhia, Kirovohrad, and Poltava Oblasts);
- Transcarpathian Customs (Transcarpathian Oblasts);
- Kyiv Customs (Zhytomyr, Kyiv, and Cherkasy Oblasts, city of Kyiv);
- Odessa Customs (Odessa Oblast);
- Northern Customs (Chernihiv Oblast);
- Podilsk Customs (Vinnytsia, Khmelnytsky Oblasts);
- Polissya Customs (Rivne Oblast);
- Slobozhansk Customs (Sumy, Kharkiv Oblasts);
- Eastern Customs (Luhansk Oblast);
- Black Sea Customs (Mykolaiv and Kherson Oblasts, Crimea, city of Sevastopil);
- Energy Customs (customs clearance of fuel, natural gas, oil, ammonia, electricity, methanol-based mixtures);
- Coordination and Monitoring Customs (accumulation of experience and oversight functions, establishment of competence centers for complicated and risk-related groups of goods, establishment of monitoring groups for analyzing the data from the borders, review of footage from cameras, data from weighting devices, scanners etc.)
Specialized customs authorities
To perform individual tasks and a group of several tasks charged with the Customs Service of Ukraine, the appropriate specialized bodies shall be established within it that discharge their functions in the entire customs territory of Ukraine:
- The specialized laboratory on expert examination and research;
- Department of Specialized Training and Canine Support.
The specialized bodies are legal entities that have their independent balance sheet, accounts with the bodies providing the treasury services of the budget funds; they have a seal and a letterhead with the image of the State Emblem of Ukraine and their own name. They shall act in accordance with the Constitution of Ukraine, the Customs Code, and other normative acts and pursuant to the regulations that are approved by orders of the State Customs Service. The State Customs Service shall establish, reorganize and liquidate the specialized bodies.
The following entities have been created within the Customs Service of Ukraine with a view to training, re-training and professional development of state customs professionals as well as conducting science research in the field of ensuring customs interests:
1. a specialized educational institution – the Customs and Finance University that is the only institution of higher learning in Ukraine that trains professionals for the State Customs Service of Ukraine;
2. science research institution – State Research Institute of Customs Affairs that aims to conduct fundamental applied science research on conceptual analysis of the state and prospects of the customs policy development, the theoretical basics of customs security and the organization and economic mechanism supporting them.
Customs Stations, Customs Control Areas, Checkpoints
A customs station shall be a customs authority that is a part of the customs office as a structural division and shall ensure the performance of tasks charged with the customs authorities in the area of its operations. Areas of operations of customs stations shall be determined by regulations on the stations. Regulations on customs stations shall be approved by heads of the appropriate customs offices subject to approval by the State Customs Service.
Customs controlled areas shall be established at the checkpoints of the state border of Ukraine, in the territories of sea and river ports, airports, at railway stations and in the territory of enterprises, free customs areas, customs warehouses, temporary storage warehouses as well as in other places provided by the Customs Code with a view to ensuring customs control of goods that are moved across the customs border of Ukraine and the taking of measures related to uncovering, preventing and stopping smuggling and violations of customs regulations.
Automobile, air, sea, ferry, river, railroad and pedestrian – these are the types of traffic across the state border of Ukraine that are carried out only through checkpoints and control points.
Checkpoints and control points are divided as follows:
- international (for the passage of citizens and vehicles of all states);
- interstate (for the passage of citizens of Ukraine and citizens of neighbor states as well as vehicles owned by them);
- local (for the simplified passage of citizens of Ukraine and citizens of neighbor states who live in the border area (districts) as well as vehicles owned by them);
The State Border Service of Ukraine pursuant to valid documents entitling their holders to enter the territory of Ukraine or exit the territory of Ukraine ensures the passage by the persons crossing the border. The passage of vehicles, cargoes, goods and other property across the state border is granted in accordance with current legislation and international agreements of Ukraine.
Where citizens cross the state border, border control is exercised that envisages a verification of documents and grounds entitling one to enter Ukraine or exit Ukraine. During this procedures vehicles, cargoes, goods (items) and other property are inspected.
Border control shall be exercised:
- upon entry in Ukraine – before performing other types of control;
- upon exit from Ukraine – after the completion of all required types of control.
As of 2021, a total of 230 checkpoints and control points function at the state border of Ukraine (199 checkpoints and 31 control points).
Figure 1. Number of checkpoints and control points by category
Figure 2. Number of checkpoints and control points by type of traffic
2.3. Customs economic zones
The general concept of customs economic zones
Customs economic zones are widely created in the world practice. They are a limited territory with a special economic status as compared to the rest of the territory of the country. This is mainly manifested in a preferential treatment in terms of tax, customs, currency and financial conditions applicable to local entrepreneurs and companies as well as to foreign investors. Most frequently, such a zone is described by the term “free economic zone” (the “FEZ”) and is subject to a special management regime. Aside from that, this zone is singled out of the general customs border of the country. The typical features of most free economic zones are tax and customs benefits concerning the import duty, value added tax, profit tax, a fee payable to the employment fund, land use fees and the excise duty. Additionally, some improved customs procedures and a liberal foreign currency policy are envisaged.
The main reasons for the countries that create free economic zones to create them is the need to ensure favorable conditions for a targeted social and economic development, ensure an effective use of the beneficial transport, geographic and geopolitical location, furnishing a solution to the employment issues, and holding a local business experiment etc.
Free economic zones are widely used in world business practices with a view to attracting investment and ensuring their effective use, activating entrepreneurship activities jointly with foreign investors aiming to increase goods exports, and shipments to the domestic market of high-quality products and services, implementing new technologies, developing the market infrastructure, improving the use of natural, physical and labor resources as well as speeding up social and economic development. By establishing free economic zones, governments expect investors to create new jobs, they also expect the exports to grow and the industrial infrastructure to build. Such expectations are often justified.
Free economic zones in Ukraine
Almost immediately after Ukraine's independence and the passing in 1992 of the Law of Ukraine “On General Principles of Creation and Functioning of Special (Free) Economic Zones,” conditions for the functioning of free economic zones in Ukraine were created. Even today, the Law is the main state document in this field. The Law provides that a FEZ is a part of the territory of Ukraine, in which a special legal regime of economic operations is established and functioning as well as the procedure for applying legislation of Ukraine. The Law provides that privileged customs, tax, foreign currency and financial as well as other terms may be implemented of economic activities of the national and foreign investors.
In accordance with the above Law, the special (free) economic zones shall be established by the Verkhovna Rada of Ukraine on the initiative of the President of Ukraine, the Cabinet of Ministers of Ukraine or local Councils of People’s Deputies of Ukraine and local state administrations. The status and territory of a (free) economic zone as well as the term for which it is created shall be established by the Verkhovna Rada of Ukraine. Operation of each FEZ is governed by a separate law.
In accordance with Resolution of the Cabinet of Ministers of Ukraine of March 14, 1994, No. 167 “On the Concept of Creating Special (Free) Economic Zones in Ukraine, the FEZ may be of the following types:
- foreign trade zones are a part of the territory of the state where foreign-origin goods may be stored, purchased and sold duty-free and without payment of customs fees or with their deferral;
- scientific and technical zones are the FEZ whose special legal regime is oriented at the development of the scientific and production potential and achieving the economy of a new quality through encouraging fundamental and applied research with a further implementation of scientific research results into production;
- tourist recreation zones are the FEZ that are set up in the regions with a rich natural, recreation and historical and cultural potential with a view to achieving their effective use and preservation as well as boosting entrepreneurship activities (including those that involve foreign investors) in the field of recreational and tourist business.
- bank and insurance (offshore) zones are the areas in which especially favorable treatment of bank and insurance transactions in foreign currencies is implemented to service non-residents;
- frontier trade zones are a part of the territory of the state at the border with neighbor countries where simplified procedures for border crossing and trade are applied.
As of 2021, there are 11 FEZ of different types in 58 cities of Ukraine. If one is to have no regard to the differences in their size, the terms of their functioning are very similar. The operations of most of them, however, are very scarce or have almost stopped.
Customs clearance in FEZ
The Customs Code of Ukraine provides that a free customs area shall be a customs regime under which foreign goods are brought into the territory of the free customs area and are brought out of this area beyond the boundaries of the customs territory of Ukraine free of customs payments and without application of measures of non-tariff regulation of foreign economic activities, while Ukrainian goods are brought into the territory of the free customs area subject to charging customs dues and the application of non-tariff regulation measures.
The goods that have been placed under the customs regime of a free customs area are under customs control during the entire term of staying under this regime.
Transactions in the goods placed under the customs regime of free customs area that stay in the territories of free customs areas of a commercial type shall be limited only to simple warehouse operations required to ensure the safekeeping of these goods (the movement of the goods with a view to their rational placement, cleaning, airing, drying, protection against corrosion etc.). It shall also be allowed to break down batches into smaller ones, making up shipments, sorting, packaging, re-packaging, labeling, loading, unloading, reloading and other similar operations.
The performance of operations shall be allowed concerning the goods placed under the regime of free customs area that are located in the free customs area of the service type. These operations shall be related to repair, upgrade, and building of aircraft, sea and river vessels, other floating craft and their components as well as the operations that, similar to the commercial-type areas, were necessitated due to the operation of the FEZ.
The lists of the types of goods that may be placed under the customs regime of free trade area with a view to locating them in the territories of free customs areas of an industrial type and of production operations that may be performed concerning such goods shall be provided by individual laws of Ukraine on each such area.
Placing Ukrainian goods under the customs regime of free customs area for the purposes of taxation and custom control shall be considered as exports of such goods.
State export control over goods shipments and provision of services is exercised on general grounds both when Ukrainian goods are placed under the customs regime of free customs area and when the goods are exported from the FEZ abroad.
FEZ problems
Free economic zones may encourage economic growth in the regions. However, their establishment has some negative consequences that are the emergence of smuggling, abuse in the field of privileged taxation, higher levels of corruption, infringement upon intellectual property rights and an increased volume of counterfeit production.
The Organization for Economic Cooperation and Development (OECD) and the European Union Intellectual Property Office (EUIPO) noted that the share of counterfeit goods coming from the countries, in whose territories 20 largest FEZ are located, is twice bigger than the share of the countries that do not have FEZ.
Causes of the increased production of counterfeit goods in the FEZ is lax supervision and a good infrastructure that such zones usually have.
Another fundamental problem of the free economic zone functioning in Ukraine is the reduction in investors’ innovative potential, because the investors view these zones only as a “tax heaven” for local business entities.
The establishment of the Crimea FEZ was an example of a lack of the sufficient effectiveness and negative phenomena. This FEZ was intended to promote operations of Ukrainian enterprises in the occupied peninsula. However, the results of this FEZ operations were criticized for it simplified the commission of illegal acts. In this sense, one of the main arguments is that the establishment of the FEZ caused an increase in the smuggling of goods. Weak customs control and the lack of strict supervision played their decisive role in aggravating the problem of counterfeit goods in the Crimea FEZ. This zone also features money laundering, tax evasion, market distortion, illegal trade in tobacco products and corruption.
One should take it into consideration that underpayment of customs fees to the budget of the country and smuggling of goods from the FEZ undermine competition for law-abiding market participants who are deprived of their chances to offer a full price for their goods under the conditions of paying full amounts of tax payable.
To prevent the occurrence of the described violations, strict controls, including those on the part of customs authorities, shall be established over the FEZ operations.
For a long time already, the International Chamber of Commerce has been analyzing the functioning of FEZ in different countries. As a result, the International Chamber of Commerce emphasizes the need to consider different aspects when establishing a FEZ in the state that would shape the interaction between enterprises and the State within the FEZ, namely:
- an enhanced cooperation between customs authorities and FEZ bodies;
- the granting to the customs authorities of a broad authority to monitor daily business operations occurring within the FEZ;
- the availability of effective training programs for customs officials on the issues of protection of intellectual property rights;
- a simplification of the procedure for notification of trademark owners of infringements.
It is also recommended for any new trade agreements signed by Ukraine to have clauses aiming to prevent an illegal use of the FEZ by law-breakers who infringe upon intellectual property rights.
2.4. Controlled delivery
Special features of international transfer of controlled goods
Special features of export control over international transfers of military and dual-use goods, in contrast to other export-import operations with goods, lie in ensuring national security, non-proliferation of weapons of mass destruction and means of their of delivery, in limiting international transfers of conventional weapons and countering terrorism. State export control is carried out throughout the lifecycle of such goods, including during their international transfers (export, import, temporary import, temporary export and transit), as well as in the process of their intended use by the final consumer. Customs control and customs clearance, as tools of the state export control during the movement of such goods, are covered below.
International export control regimes (associations of countries), which form the guidelines for control over international transfers of military goods (conventional weapons) and related dual-use goods, as well as non-proliferation of goods that can be used to create weapons of mass destruction (nuclear, chemical, biological) and means of their delivery, are: the Wassenaar Arrangement (WA), the Nuclear Suppliers Group (NSG), the Zanger Committee (ZC), the Missile Technology Control Regime (MTCR) and the Australia Group ( AG).
Proper control over the international movement of military and dual-use goods is stipulated by Ukraine’s obligations in this area assumed by it as a full member of international export control regimes.
Article 6 of the Law № 549 establishes the powers of public authorities in the field of the state export control. The specially authorized body of executive power on the issues of the state export control, as well as ministries and other central bodies of executive power are authorized by the Law to carry out measures in the field of state export control, ensure the implementation of state policy in this area.
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Law № 549 — Law of Ukraine № 549-IV of20.02.2003 “On State Control over International Transfers of Military and Dual-Use Goods”
According to the Regulation № 159, the State Service for Export Control of Ukraine (SSECU) is a central body of executive power whose activities are directed and coordinated by the Cabinet of Ministers of Ukraine through the First Vice Prime Minister of Ukraine - Minister of Economy and which implements state policy in the field of state export control.
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Regulation № 159 — Regulation on the State Service for Export Control of Ukraine, approved by the Resolution of the Cabinet of Ministers of Ukraine № 159 dated31.03.2015
The State Customs Service, apart from carrying out the state customs procedures, together with the SSECU constitutes a part of the state export control system of Ukraine.
Customs clearance and customs control of goods are carried out in the manner prescribed by the Customs Code (Article 21 of the Law № 549).
Article 197 of the Customs Code stipulates that in cases provided by the Law, certain goods are subject to restrictions on their movement across the customs border of Ukraine. In this case, the movement of these goods across the customs border and their customs clearance are carried out by customs authorities on the basis of permits issued by state authorities authorized to perform the relevant control functions. The list of such goods and the procedure for issuing the relevant permits are approved by the Cabinet of Ministers of Ukraine.
The procedures for the state control over international transfers of military and dual-use goods, as well as lists of such goods are approved by the Resolutions № 1807 and № 86.
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Note
Resolution № 86 — Resolution of the Cabinet of Ministers of Ukraine № 86 of January 28,2004 “On Approval of the Procedure for State Control over International Transfers of Dual-Use Goods”
Resolution № 1807 — Resolution of the Cabinet of Ministers of Ukraine № 1807 of November20, 2003 “On Approval of the Procedure for State Control over International Transfers of Military Goods”
According to Article 252 of the Customs Code, military equipment, fully staffed by a military team (combat and military transport aircrafts, warships and support vessels of the Navy, etc.), which crosses the customs border of Ukraine, is subject to customs clearance in the manner prescribed by the Cabinet of Ministers of Ukraine.
Customs clearance of military equipment of foreign states is carried out by the customs authority with the participation of representatives of the Ministry of Defense of Ukraine, and if the measures within which such goods are moved belong to the powers of another central body of executive power – the relevant representative participates as well.
Customs clearance of military equipment, including military vehicles crossing the customs border of Ukraine, is carried out in accordance with the procedure approved by the Resolution № 63. The list of checkpoints along the state border through which the movement of military goods and nuclear materials is approved by the Resolution № 1057.
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Resolution № 63 — Resolution of the Cabinet of Ministers of Ukraine № 63 of January18, 2003 "On approval of the Procedure for the customs clearance of military equipment, including military vehicles crossing the customs border of Ukraine"
Resolution № 1057 — Resolution of the Cabinet of Ministers of Ukraine № 1057 of17.11.2010 "On approval of the list of checkpoints along the stateborder through which the movement of military goods and nuclear materials arecarried out"
According to the requirements of the abovementioned procedures, international transfers of goods may be carried out by the subject of international transfers of goods or a foreign business entity with the appropriate permission or conclusion of the SSECU.
During the customs clearance of goods along with other documents necessary for customs control and customs clearance of goods, the entity or foreign entity in accordance with part two of Article 264 of the Customs Code of Ukraine must provide the original permit or conclusion of the SSECU at the request of the customs office.
Customs clearance of goods is carried out on condition that the customs office receives permits and conclusions in electronic form through an electronic system from the SSECU.
These permits and conclusions contain reference information on product codes in accordance with Ukrainian Classifier of Goods of Foreign Economic Activities (UKTZED). The only feature for deciding on customs clearance of goods with authorization documents (permits and conclusions) is the conformity of physical characteristics of the commodity under the customs clearance to the name and description of goods listed in national control lists (Unified List of Dual-Use Goods, list of military goods) .
Military and dual-use goods
According to the definition given in Article 1 of the Law № 549, military goods in aggregate or separately are military products: weapons, ammunition, military and special equipment, special components for their production, explosives, as well as materials and equipment specially designed for the development, production or use of these products.
Paragraph 8 of Resolution № 1807 stipulates that international transfers of goods, which according to the conclusions of the relevant executive authorities are allowed for civilian use, are carried out in the manner prescribed for dual-use goods.
Dual-use goods in accordance with Article 1 of the Law № 549 are considered to be certain types of products, equipment, materials, software and technologies not specifically intended for military use, as well as related services (technical assistance), which in addition to civilian use can be used for military or terrorist purposes or for the development, production, use of military goods, weapons of mass destruction, means of delivery of these weapons or nuclear explosive devices, including certain types of nuclear materials, chemicals, bacteriological, biological and toxic drugs, the list of which is determined by the Cabinet of Ministers of Ukraine.
Dual-use goods include:
- goods that can be used in creation of conventional weapons, military or special equipment;
- goods that can be used in creation of missile weapons;
- goods that can be used in creation of nuclear weapons;
- goods that can be used in creation of chemical weapons;
- goods that can be used in creation of bacteriological (biological) and toxic weapons.
In accordance with paragraph 12 of the Resolution № 86, the permission or conclusion of the SSECU allows:
1) export, temporary export, re-export of goods, while re-export of goods is carried out in the same manner as its export;
2) import and temporary import of goods specified in entries 0С001, 0С002, 1А007, 1А008, 1А906, 1В904, 1С012, 1C350.1-1C350.3, 1C350.5-1C350.28, 1C350.30-1C350.56, 1C350.58-1C350.63, 1С351-1С354, 1C450.а.1-1C450.а.7, 1C450.b.1-1C450.b.6, 1C450.b.8, 1С913 and part 3 of Section 5, as well as import of technology according to a special note to entry 1E001 of the Unified List of Dual-Use Goods;
3) temporary import of goods that is carried out in order to provide a foreign entity with services for their repair, maintenance, modernization, etc .;
4) import of goods that are not included in the Unified List of Dual-Use Goods, in case such goods are imported into the territory of Ukraine with the provision of an international import certificate or a separate document containing state guarantees and confirming the importer's obligations to import goods to Ukraine ;
5) transit through the territory of Ukraine of goods specified in entries 0С001, 0С002, 1С351-1С354 and Section "Category I of goods that can be used in development of missile weapons" of the Unified List of Dual-Use Goods.
Identification of military and dual-use goods
Article 12 of the Law № 549 stipulates that the preliminary identification of goods, as well as implementation of the necessary measures related to obtaining permits for international transfers of such goods, is the responsibility of the business entity.
To make a decision on the possibility of issuing appropriate permits, conclusions or international import certificates, on the possibility of registering economic entities as subjects of international transfers of goods or granting such entities the right to export, import military goods and goods that contain information that constitutes a state secret, the state export control examination is ought to be held.
Based on the results of the examination, the SSECU identifies goods, determines the conditions of their international transfers to specific countries depending on the category of goods, type of international transfers of such goods, etc. and issues registration certificates to such entities as subjects of international transfers of goods together with relevant clarifications about the peculiarities of such transfers.
In accordance with paragraph 7 of the Regulation on the procedure for examination in the field of state export control, approved by the Cabinet of Ministers of Ukraine № 767 of 15.07.97, examination in the field of state export control may be state or non-state.
The state examination is carried out by:
- SSECU;
- other central executive bodies and other state bodies within their competence (at the motivated request of the ordering customer of such examination or at the request of the Interdepartmental Commission for Military-Technical Cooperation Policy and Export Control).
The conclusion of the state examination is obligatory for consideration by the SSECU and other executive bodies while making the corresponding decisions.
Non-state expertise on dual-use goods identification is conducted by legal entities that have the appropriate authority to do so, at the initiative of the ordering customer of the examination who is interested in obtaining expert conclusions. The conclusion of the non-state examination is recommendatory and may be taken into consideration by the executive authorities along with the conclusions of the state examination to make appropriate decisions.
Special features of customs clearance of controlled goods
The sequence of actions of customs inspectors while implementing customs control and customs clearance of dual-use and military goods is shown in the diagram:
During international transfers goods, the applicant or the person authorized by him to declare the goods, along with other documents required for customs clearance shall submit to the customs authority a customs declaration stating the details of the permit issued by the SSECU, and at the request of the customs authority (according to Article 264 of the Customs Code) - the original permit of the SSECU.
The procedure for using permits and conclusions of the SSECU and their electronic copies within the customs authorities was approved by the Order № 649.
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Order № 649 — Order of the Ministry of Finance of Ukraine dated 30.05.2012 № 649"On ratification of procedure for the use of permits and conclusions issued by the SSECU and their electronic copies within the customs authorities"
Some aspects of the use of SSECU permits and conclusions during customs control and customs clearance of military and dual-use goods are presented below:
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Import into the customs territory ofUkraine
When goods are exported outside the customs territory, the original permit of the SSECU shall be submitted for the customs clearance. The date of customs clearance, the number of the CD (customs declaration), the name and quantity of goods specified in column 31 of the CD should be indicated on the reverse side of the original permit.
A copy of the SSECU permitwith the marks of the customs clearance officer is returned to the applicant.The original permit is stored at the customs office.
At the checkpoint on the customs border of Ukraine, the applicant or aperson authorized by him shall provide the customs with the appropriate sheetof the issued CD, as well as a copy of the SSECU permit with records ofcustoms clearance.
When goods are imported intothe customs territory of Ukraine, the applicant at the checkpoint must submita copy of the SSECU permit to the customs authority at the time of movementof goods across the customs border of Ukraine.
The customs official at the checkpoint on the reverse side of the copy of the SSECU permit shall indicate the date of clearance, name and number of goods actually passed through the customs border of Ukraine.
During the customs clearance of goods, the applicant or a personauthorized by him shall submit the original SSECU permit, CD and otherdocuments to the customs authority of clearance. The date of customsclearance, CD number, name and quantity of goods specified in column 31 ofthe CD should be indicated on the reverse side of the original SSECU permit.
Information on customs control of goods subject to the state export control is reflected in the columns of the customs declaration in accordance with the Procedure № 651. Thus, the following information is entered in subsection 5 of column 33 of the customs declaration:
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if the goods are not subject to export control
1
if the goods are included in the lists of military or dual-use goods, international transfers of which are subject to state export control, and the import of such goods into the customs territory of Ukraine requires a permit or conclusion of the SSECU
2
if the goods are included in the list of dual-use goods, internationaltransfers of which are subject to state export control, but in accordancewith the law, the permission or conclusion of the SSECU when importing suchgoods into the customs territory of Ukraine is not required
3
if the goods are included in the lists of military or dual-use goods, international transfers of which are subject to state export control, but in accordance with Article 10 of the Law № 549 export of such goods outside the customs territory of Ukraine requires a permit or conclusion of the SSECU
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Procedure № 651 — Procedure for filling in customs declarations on the form of a single administrative document, approved by the Order of the Ministry of Finance of Ukraine № 651 dated 30.05.2012
In column 44 of the customs declaration in accordance with the Classifier of documents approved by the Order № 1011, the declarant indicates the code:
- 5010 - if international transfers of goods are carried out with the permit of the SSECU;
- 5012 - if international transfers of goods are carried out with the conclusion of the SSECU.
Special conditions for the use of permits / conclusions of the SSECU
Business entities of Ukraine, state customers in the field of defense, which intend to carry out international transfers of military and dual-use goods, including intermediary (brokerage) activities related to international transfers of military and dual-use goods, are pre-registered as subjects of international transfers of such goods by the central body of executive power, which implements the state policy in the field of state export control - the State Service for Export Control of Ukraine (SSECU). To this end, these entities submit the information and documents necessary for the preliminary examination of goods to the SSECU.
The subject of international transfers of goods is obliged to provide SSECU with complete and reliable information about the known end use of goods, international transfer of which is planned to be carried out, as well as originals of guarantee documents confirming the use of goods only for the stated purposes.
The subject of international transfers of goods must take measures to verify the delivery and the end use of goods in case of their export and provide relevant information to the SSECU, as well as assist the authorized state bodies of Ukraine in conducting such inspections.
The SSECU and other authorized state bodies of Ukraine have the right to inspect delivery (for example, by establishing the condition of mandatory accompaniment of goods during delivery to the final consumer) or the end use of goods at any stage of their international transfer and after actual delivery of goods to the final consumer. The SSECU may involve intelligence services of Ukraine in conducting such inspections.
Section 3. Basic customs procedures
3.1. Customs regimes
According to Article 4 of the Customs Code of Ukraine, customs regime shall mean a set of interrelated legal rules that, according to the declared purpose of moving the goods across the customs border of Ukraine, determine the customs procedure applicable to these goods, their legal status and fiscal terms and determine their use after customs clearance. The chosen customs regime affects the possibility of transporting certain categories of goods, the customs clearance and customs control procedures, customs duties, as well as determines the scope of customs procedures to be transformed in the process of customs clearance of goods and vehicles. The customs regime determine:
- the procedure for transporting goods across the customs border of Ukraine depending on its purpose (purpose of transportation);
- conditions for placing goods and their possible use within (outside) the customs territory;
- rights and obligations of the declarant;
- the scope of powers of customs authorities.
The following custom regimes are being used in Ukraine:
1) import (release for free turnover);
2) re-import;
3) export (final exportation);
4) re-export;
5) transit;
6) temporary import;
7) temporary export;
8) customs warehouse;
9) free customs zone;
10) duty free trade;
11) processing in the customs territory;
12) processing outside the customs territory;
13) destruction or abolition;
14) refusal in favor of the State.
The customs applicant has the right to choose the custom regime, choose location to place the goods due to the order stipulated by Customs Code. Process of putting goods in the customs regime is carried out by declaration and execution of customs formalities. The custom regime in which the goods are placed may be changed to another, chosen by the customs applicant according to compliance of conditions on tariff and non-tariff regulation of foreign trade activities stipulated in accordance with the law for goods placed in another custom regime.
Depending on their significance the customs regimes can be divided into two groups. The first one is characterized by the general, without any exceptions and restrictions, order of applying customs procedures. From the economic point of view, the customs regimes of this group are a kind of regulators for independent and complete commercial transactions that do not require further customs control over the use of goods after their customs clearance (import, re-port, export, re-export). The second group consists of the so-called economic regimes, which are characterized by more flexible use of customs and legal instruments to regulate foreign economic activity and require further customs control after customs clearance of goods. These customs regimes allow declarants to obtain some economic benefits and advantages in the form of full or partial exemption from customs duties and other taxes, as well as non-application of non-tariff measures, but the use of goods in these regimes is allowed only for a specific purpose: transit, temporary import/export, customs warehouse, special customs zone, duty-free shop, processing in the customs territory of Ukraine, processing outside the customs territory of Ukraine, destruction or abolition, refusal in favor of the state. According to the requirements for the application of these regimes, they require further control by customs authorities over their use and after completing their purpose require finalizing of customs control by issuing a customs declaration in accordance with the customs regime which ensures the removal of goods from the customs authority’s control.
According to the customs status, goods are divided into Ukrainian and foreign. All goods in the custom territory of Ukraine (except for the territories of free custom zones) are considered to have the status of Ukrainian goods, if according to the Customs Code it is not stipulated that such goods are not Ukrainian.
Conditions for the accommodation of goods, transport vehicles of commercial purpose in the corresponding custom regime, restrictions on their use, application of measures of tariff and non-tariff regulation of foreign trade activities are determined by the Customs Code and other legislative acts of Ukraine on issues of the state custom service and foreign trade. Issues related to the implementation of the necessary customs formalities and the customs control of goods placed in the appropriate custom regime are regulated by the Customs Code.
3.2. Customs formalities
All goods and vehicles of commercial purposes moving across the customs border of Ukraine are subject to customs control. Customs control is carried out exclusively by customs authorities in accordance with the Customs Code and other laws of Ukraine and stipulates implementation of the minimum customs formalities necessary to ensure compliance with the laws of Ukraine.
The Ministry of Finance of Ukraine has determined the Procedure for fulfilling customs formalities in accordance with the declared customs regime.
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Procedure No. 657 - Procedure for completion of customs formalities in accordance with the declared customs regime, approved by the Order of the Ministry of Finance of Ukraine No. 657 dated 30.05.2012
Customs clearance shall commence after presentation by the customs applicant or the person authorized by him of the customs declaration or a document in lieu thereof under the law, and documents required for customs clearance, to the revenue and duties authorities, and in the case of an electronic declaration, upon receipt of the electronic customs declarations or an electronic document in lieu thereof under the law by the revenue and duties authority from the customs applicant or the person authorized by him.
The acceptance by the customs office of goods, means of transport for commercial use and documents for customs clearance shall be acknowledged by using the appropriate customs instrumentality (including information technology), and putting other marks on the customs declaration or the document in lieu thereof under the law, as well as the accompanying and transport documents if they are submitted in paper form (Article 248 of the Customs Code).
The procedure for performing customs formalities for the customs clearance of goods with the use of a customs declaration on the form of a single administrative document is approved by the Procedure No. 631
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Note
Procedure No. 631— Procedure for performing customs formalities for the customs clearance of goods with the use of a customs declaration on the form of a single administrative document, approved by the Order of the Ministry of Finance of Ukraine No. 631 dated 30.05.2012
In case of importation into the customs territory of Ukraine of goods or commercial vehicles, customs control begins from the moment they cross the customs border of Ukraine. In case of exportation of goods or commercial vehicles outside the customs territory of Ukraine, customs control begins from the moment the goods/commercial vehicles are presented for the customs clearance and their declaration in the prescribed manner.
The customs control of goods and vehicles at checkpoints along the state border of Ukraine is carried out in accordance with the standard technological schemes of customs control, approved by the Resolution No. 451.
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Note
Resolution No. 451 — Resolution of the Cabinet of Ministers of Ukraine No.451dated 21.05.2012 approving Standard technological schemes for crossing the state border and customs control of road, water, railway and air vehicles of carriers and goods moved by them at checkpoints.
According to the Standard technological scheme, at checkpoints along the state border during the customs control and customs clearance of road vehicles and goods, the controlling bodies shall perform:
• registration of arrival of road vehicles and goods into the customs territory of Ukraine or their departure from the customs territory of Ukraine;
• check of completeness of the documents required for the customs control and customs clearance of road vehicles and goods in accordance with the declared customs regime, as well as the information specified in these documents;
• accounting and registration of road vehicles and goods, the results of their customs control and customs clearance;
• control the observance of terms of temporary importation of road vehicles and goods into the customs territory of Ukraine or their temporary exportation from the customs territory of Ukraine established by law;
• control the observance of the transit conditions for road vehicles and goods passing through the customs territory of Ukraine established by law;
• in cases established by law, application of guarantee measures for the delivery of road vehicles and goods to the customs offices of destination;
• control the compliance with the legal requirements establishing prohibitions or restrictions for the movement of road vehicles and certain types of goods across the customs border of Ukraine;
• risk analysis and risk assessment, inter alia with the use of documentary risk profiles or electronic risk profiles integrated into the relevant software of the Customs Service;
• customs inspection (inspection and re-inspection of road vehicles and goods, hand luggage, baggage and personal inspection of citizens);
• control over the performance of government types of control that are established by legislation and that apply to the road vehicles and goods at the checkpoints as well as the determination of the forms of their performance (a preliminary documentary control by an official of the customs authority or the state control by the officials of the appropriate regulatory authorities);
• decision-making about measures to be taken to ensure compliance with the customs legislation during the transportation of road vehicles and goods across the customs border of Ukraine;
• interaction with other state control bodies during the performance of the required types of control that are established by legislation and are necessary for the road vehicles and goods;
• accrual of customs payments envisaged by legislation during customs control and customs clearance of road vehicles and goods at the checkpoints as well as control over completeness of their levying;
• the drawing up of customs documents established by legislation following the results of customs control and customs clearance of road vehicles and goods;
• identification of road vehicles and goods in the cases and in accordance with the procedure established by law;
• an approval of the decision concerning the passage or a refusal to allow the passage of road vehicles and goods to the customs territory of Ukraine or beyond the border of the customs territory of Ukraine or the release of goods.
During the performance of customs control and customs clearance of road vehicles and goods at the checkpoints across the state border, the customs offices put the appropriate marking, seals and stamps on the customs and shipping documents (bills of lading) as well as input the relevant information onto logs, including electronic, or other documents that are used by the regulatory authorities in accordance with Procedure No. 631 as well as normative legal acts on state customs.
Article 336 of the Customs Code provides that customs control is carried out directly by the customs officials through:
• verification of documents and information that in accordance with Art. 335 of the Customs Code are provided to customs when goods, means of transport for commercial use are moving across the customs border of Ukraine;
• customs inspection (inspection and re-inspection of goods, means of transport for commercial use, inspection and re-inspection of hand luggage and baggage, personal inspection of citizens);
• accounting of goods, means of transport for commercial use, moved across the customs border of Ukraine;
• oral questioning of citizens and business officials;
• inspection of the territories and premises of temporary storage warehouses, customs warehouses, free customs zones, duty-free shops, and other places, where goods, means of transport for commercial use subject to customs supervision are stored, or activities, for whose control the revenue and duties authorities are responsible under this Code and other laws Ukraine, are conducted;
• review of the records of goods that are moved across the customs border of Ukraine and/or placed under customs supervision;
• desktop audit to verify compliance with the customs legislation of Ukraine, including those verifying timeliness, accuracy, and completeness of assessment and payment of customs charges;
• requests sent to other public authorities, institutions and organisations, competent foreign authorities to verify the authenticity of documents submitted to the customs.
Section 1 of the Customs Code of Ukraine establishes that сustoms clearance shall be completed within four hours after presentation to customs office of goods, means of transport for commercial use, subject to customs clearance (if goods, means of transport for commercial use are subject to presentation under the Customs Code), customs declaration or a document in lieu thereof under the law, and all necessary documents and information provided for in Articles 257 and 335 of the Customs Code.
The period specified in Section 1 of Article 255 may be exceeded for the completion of relevant formalities specified in Section 2 of this Article.
Customs clearance shall be deemed to be completed after all the customs formalities specified in this Code in accordance with the declared customs procedure have been carried out, as acknowledged by the customs office by using the appropriate customs instrumentality (including information technology), and putting other marks on the customs declaration or a document in lieu thereof under the law, as well as accompanying and transport documents if they are presented in paper form (Section 5 of Article 255 of the Customs Code).
3.3. Special features of customs clearance of controlled goods
In accordance with Article 5 of the Law of Ukraine No. 549-IV dated February 20, 2003 "On the State Control over International Transfers of Military and Dual-Use Goods" (hereinafter - the Law No.549) one of the methods of state export control is implementation of customs control and customs clearance of goods.
The special feature of customs control over international transfers of military and dual-use goods (customs control as one of the links in the chain of state export control), in contrast to other export-import operations with goods, is to ensure national security, nonproliferation of weapons of mass destruction and means of their delivery, restriction of international transfers of conventional arms and counteraction to possible acts of terrorism. The state export control is carried out for the export, import, temporary import, temporary export and transit of such goods.
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More detailed information on the transfers, identification, lists of controlled goods and conditions of using permits/conclusions of the SSECU is given in section"2.4 Controlled delivery" of this Handbook.
When transporting goods, the declarant or a person authorized by him along with other documents required for customs clearance provides the customs authority with a customs declaration stating the details of the permitting document issued by the SSECU, and at the request of the customs authority, according to Article 264 of the Customs Code - the original permit of the SSECU.
Information on customs control of goods subject to the state export control is reflected in the columns of the customs declaration in accordance with Procedure No. 651. Thus, in subsection 5 of column 33 of the customs declaration the following numbers should be entered:
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ifthe goods are not subject to export control
1
if the goods are included into the lists of military or dual-use goods, international transfers of which are subject to the state export control, and the import of such goods into the customs territory of Ukraine requires a permit or conclusion of the SSECU.
2
if the goods are included into the lists of dual-use goods, international transfers of which are subject to the state export control, but in accordance with the law, the permit/ conclusion of the SSECU for importing such goods into the customs territory of Ukraine is not required
3
if the goods are included into the lists of military or dual-use goods, international transfers of which are subject to the state export control, but in accordance with Article 10 of the Law No. 549 exportation of such goods outside the customs territory of Ukraine requires a permit or conclusion of the SSECU
In column 44 of the customs declaration in accordance with the Classifier of documents approved by the Order No. 1011, the customs applicant indicates the code:
5010 - if international transfers of goods are carried out with the permit issued by the SSECU;
5012 - if international transfers of goods are carried out according to the conclusion issued by the SSECU.
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Order No. 1011 — Order of the Ministry of Finance No.1011 of Ukraine dated20.09.2012 "On Approval of departmental classifiers of information on the state customs matters used in the process of registration of custom declarations".
The procedure for customs authorities to use permits and conclusions of the State Service for Export Control of Ukraine and their electronic copies was approved by the Order of the Ministry of Finance of Ukraine No. 649 dated 05.30.2012
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Order No. 649— Order of the Ministry of Finance of Ukraine No.649 dated30.05.2012 "On approval of the Procedure for the use in customs authorities of permits and conclusions of the State Service for Export Control of Ukraine and their electronic copies".
When goods are exported outside the customs territory, the original permit of the State Service for Export Control of Ukraine (SSECU) shall be submitted to the customs. The reverse side of the original shall indicate the date of customs clearance, the number of the customs declaration, the name and quantity of goods specified in column 31 of the customs declaration.
A copy and the original of the permit document issued by the SSECU with the marks of the customs official shall be returned to the applicant. At the checkpoint on the customs border of Ukraine, the applicant or a person authorized by him shall provide the customs authority with the appropriate sheet of the customs declaration, as well as a copy of the permit document issued by the SSECU with customs clearance records.
When importing goods into the customs territory of Ukraine, the declarant must submit a copy of the permit issued by the SSECU to the customs authority. At the checkpoint, the customs official shall indicate the date of clearance, name and quantity of goods actually passed through the customs border of Ukraine on the reverse side of the copy of the SSECU permit document.
During the customs clearance of goods, the declarant or a person authorized by him shall submit the original permit issued by the SSECU, customs declaration and other documents to the customs authority. The date of customs clearance, the number of the customs declaration, the name and quantity of goods specified in column 31 of the customs declaration shall be indicated on the reverse side of the original permit issued by the SSECU.
The Customs Code of Ukraine in its Article 252 provides the rule envisaging that military equipment complete with a military crew (combat and military transport aircraft, warships and support vessels of the Navy, etc.) that crosses the customs border of Ukraine shall be subject to customs clearance.
Customs clearance of the military equipment of foreign states shall be performed by the customs authority with the participation of the representatives of the Ministry of Defense of Ukraine and, where the measures under which such goods are being moved belong within the scope of powers of another central executive authority, in the presence of the representatives of this central executive authority. The goods that are being moved over board of foreign warships and military aircraft to the customs territory of Ukraine or in the opposite direction shall be subject to the customs clearance in accordance with the procedure provided by the Customs Code of Ukraine.
The procedure for customs clearance of military equipment, including military vehicles crossing the customs border of Ukraine is approved by the Decree of the Cabinet of Ministers of Ukraine No. 63 dated 18.01.2003. A special feature of customs clearance of military equipment is its implementation as a matter of priority and involvement SSECU to carry out the necessary formalities. When moving foreign military equipment across the customs border of Ukraine, the authorized person not later than 3 days before the customs clearance of this equipment submits a written application to the relevant customs authority stating the place, time, purpose of moving military equipment and incurred liabilities according to the law. The customs clearance of military equipment is carried out on condition the State Customs Service receives from the SSECU a permits or conclusion in electronic form with the use of qualified electronic signatures and in accordance with the CCU provisions. For the customs clearance of military equipment, a customs declaration filled in in accordance with the established procedure shall be submitted to the customs authority.
Customs clearance of military equipment crossing the customs border of Ukraine for the purpose of carrying out operational and tactical measures (military exercises, international peacekeeping and security operations, anti-terrorist operations, convoys of seagoing vessels, participation in emergency response, submission of military and humanitarian aid, etc.), is carried out without the submission of a permit or conclusion of the SSECU, if such transfer occurs within the framework of international agreement that stipulates a mechanism for the state control over movement of such goods. The list of military equipment crossing the customs border of Ukraine under international agreements that envisage a mechanism for the performance of state control over the movement of goods shall be coordinated with the State Service for Export Control of Ukraine and approved by the head (their deputy) of the central executive authority which administrative management domain includes such military equipment or which is the receiving party of such equipment.
Taxes and fees during the customs clearance of military equipment are collected in the manner prescribed by law. These norms are also reflected in the Procedure for the implementation of customs formalities on sea and river transport, approved by the Order of the Ministry of Finance of Ukraine No. 308 dated 10.03.2015.
Section 4. Classifier of customs documents
4.1. Types of customs declaration
To ensure compliance with the Customs Code (ССU), laws and other customs regulations of Ukraine, international treaties of Ukraine, concluded in the manner prescribed by law, the state provides a set of measures and procedures to be carried out by the officials of the Customs Service of Ukraine, as well as residents and non-residents who transport goods and valuables across the customs border of Ukraine for the purpose of import, export or transit. This set of procedures is defined by the term "customs control" and among others includes the procedure of customs clearance - the implementation of customs formalities required for the release of goods, commercial vehicles in various regimes. In their turn, customs formalities are a set of actions of relevant persons and customs authorities, as well as an automated system of customs clearance in order to comply with the requirements of Ukrainian customs legislation.
The obligatory element of customs clearance is customs declaration - submission of information to the customs authorities on all goods and vehicles moving across the customs border. According to the CCU, the declaration is made by indicating in the prescribed form (written, oral, or by action) the accurate information about goods, the purpose of their movement across the customs border of Ukraine, as well as information required for customs supervision and customs clearance. When using the written form of the declaration both electronic and paperback documents or their electronic (scanned) copies certified by the electronic digital signature of the customs applicant or his authorized person, may be used. Customs declaration and other documents, whose presentation to the revenue and duties authorities is provided for in the Customs Code, drawn up on paper and in the form of electronic documents shall be of equal legal force. However, filling in a customs declaration on paper is currently a backup method of declaration, thus requires prior agreement with the customs authority in which the customs clearance will take place. To declare goods, a customs declaration is used - application of the established form in which the person specifies the customs procedure that must be applied to the goods and the information about the goods, conditions and methods of their transportation across the custom border of Ukraine and calculation of the customs payments obligatory for the application of this procedure. The declaration is filled in by the cargo shipper, certified by the customs inspector and afterwards serves as the basis for crossing the border.
When submitting the declaration, the customs value declaration is also used - a document of the prescribed form submitted by the customs applicant and containing information on the customs value of goods moving across the customs border of Ukraine or in respect to which the customs regime is being changed.
The CCU distinguishes the following types of declarations according to the period of their use and to the subject who fills in the declaration:
Standard customs declaration
This is a declaration containing the particulars (data), sufficient to complete the customs clearance of goods under the customs procedure for which they were declared.
Certain type customs declaration
A certain type customs declaration is completed for the goods moving or that are to be moved in joint transit regime by a single vehicle from one customs office of departure or one authorized consignor to another customs office of destination or another authorized consignee in a separate cargo place or in other package, container or commercial vehicle.
One certain type customs declaration may also be filled in for goods in several separate cargo places or in other packages, containers, provided that these goods are loaded and moved or to be moved by a single vehicle.
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For requirements for filling in a certain type customs declaration, see the Resolution of the Cabinet of Ministers of Ukraine No. 681 dated August 5,2020.
Advance customs declaration
The advance customs declaration is submitted during customs registration of goods for which the Resolution of the Cabinet of Ministers of Ukraine stipulates a guarantee of customs payments. Advance declaration (or other document that may be used instead of a customs declaration in accordance with the CCU) may also be submitted for the purpose of risk analysis and speeding up customs formalities.
Execution of such customs declaration involves the submission of an additional customs declaration for the goods and does not allow free use of the goods.
In cases when the documents in the field of customs clearance for the import of goods into the territory of Ukraine do not foresee advance declaration, a preliminary notice (PN) is being made- a document used to notify the customs authority of the intention to import/export goods into/out of the customs territory of Ukraine. For PN, customs and other obligatory payments are not charged. This document is not a cargo customs declaration and is used exclusively as a document for control of delivery of goods to the customs office of destination.
Temporary customs declaration
A temporary customs declaration is submitted in case the customs applicant or the person authorized by him does not have accurate particulars about the characteristics of the goods needed to fill in standard customs declaration or the customs authority has taken samples for those goods. The submission of a temporary declaration implies the obligation to file the main declaration within 45 days. The declaration is submitted on condition that it contains information sufficient for placing the goods for the declared customs procedure.
Periodic customs declaration
Periodic customs declaration is submitted for declaration of goods moving across the customs border of Ukraine by foreign going vessel, pipeline transport or power lines, supplies, periodicals and goods, movement of which across the customs border of Ukraine is planned at least twice during its validity .
Execution of the periodic customs declaration foresees the subsequent submission to the customs and regulatory authorities of additional information on goods moved across the border under this declaration. Information is provided by the 15th day of the month following the month in which the goods were transported.
When importing goods, means of transport for commercial use into Ukraine, including for transit, a periodic customs declaration shall be used instead of an advance customs declaration.
Simplified customs declaration
The simplified customs declaration is used to declare and to release goods into the declared customs regime by an enterprise that has received the status of Authorized Economic Operator type C (AEO-C) and has permission to apply a "simplified declaration procedure" or by another enterprise on its behalf, which has received authorization type AEO-B and has a permit to carry out customs brokering activities.
Supplementary declaration
The supplementary declaration shall be submitted by the customs applicant or a person authorized by them in case of submission of an advance, temporary, simplified or periodic customs declaration. The deadlines for submitting the supplementary declaration are determined by the CCU. The supplementary declaration shall contain the exact particulars of the goods declared under the advance, temporary, simplified or periodic customs declaration which would have been submitted if the goods had been declared under the standard customs declaration.
General declaration of arrival
The General Declaration of Arrival (GDA) is a notification of the customs authority about the goods intended for import into the customs territory of Ukraine, including for transit purposes, which contains information necessary for risk analysis to ensure security and reliability.
GDA is submitted by the carrier of goods, or by another person on his behalf, to the revenue and duties authority, in operation area of which the checkpoint across the state border of Ukraine is situated, where the goods first cross the customs border of Ukraine. GDA is submitted before such goods arrive in the customs territory of Ukraine, including in the customs transit regime.
The general declaration of arrival is submitted to the revenue and duties authority in the form of an electronic message certified by an electronic digital signature, or via the interface for submitting such declaration posted on the official website of the central executive body implementing state customs policy.
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Information on the submission of GDA, including the list of exceptions when the GDA is not submitted, is given in paragraph 2 of Article 1941 of the CCU.
Theamount of data entered into the GDA is regulated by the Order of the Ministryof Finance of Ukraine No.502 dated 13.08.2020 "On approval of the Listof data to be entered into the general declaration of arrival"
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Requirements for filing in the above-mentioned declarations are listed in Chapter 40 of the CCU.
The type of a written declaration form is also the criterion for classifying the types of customs declaration. Goods are declared by submitting the following declarations to the customs authority:
Customs declaration on the form of a single administrative document (SAD)
SAD forms are used to make a standard, advance, temporary, periodic and supplementary customs declarations.
Inter alia, SADs are used to declare goods that are subject to the state export control and the transportation of which across the customs border of Ukraine in accordance with the law requires the issuance of a permit or conclusion.
It is used both when moving goods by enterprises and citizens (except in cases when the CCU and the Regulation on declarations provide for the use of other types of declarations).
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Forms of SAD are regulated by the Decree of the Cabinet of Ministers of Ukraine No. 450 dated 21.05.2012 and are given in its appendix.
Customs declaration M-16
Declaration M-16 is used to declare goods that according to the CCU are not subject to declaration under the SAD and are sent across the customs border of Ukraine in international express shipments in case:
- the citizen receives at his address the goods, the total invoice value of which exceeds the amount that is not subject to customs duties, but does not exceed the amount equivalent to 10,000 euros;
- the citizen sends the goods that are subject to export duty, and / or if in accordance with the law the state authorities issue documents necessary for customs control and customs clearance of such goods.
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Forms of M-16 declaration are regulated by the Decree of the Cabinet of Ministers of Ukraine No. 450 dated 21.05.2012and are given in its appendix.
Written application
The goods that are moved by customs applicants (except citizens) across the customs border of Ukraine (except for international postal and express shipments) for which the customs declaration is not filled in on the SAD form and which cannot be declared according to another document, are declared with a written application.
Such an application may be submitted to the customs authority on paper or as an electronic document.
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The application form is defined in Annex 1 to the Regulation on customs declarations, approved by the Cabinet of Ministers of Ukraine No. 450 dated21.05.2012.
Unified international documents
Unified customs declarations CN 22 and CN 23, the forms of which are established by the acts of the Universal Postal Union, are used to declare goods sent across the customs border of Ukraine in international mail, and which are not declared by submitting the SAD when:
- sending parcels, international grouped postal items marked "Consignment" and "EMS" items, and in case of sending items with declared value (CN 23);
- sending small packages, "M" bags and "EMS" items with the attachment of written correspondence, and in case of sending parcels (CN 22).
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Forms of CN 22 and CN 23 can be found here:https://www.upu.int/en/Postal-Solutions/Programmes-Services/Physical-Services/Letter-Post-Forms
Customs declaration for written declaration of goods
Such a declaration is issued for goods moved across the customs border of Ukraine by citizens for personal, family and other needs not related to business activities.
The form of the customs declaration for written declaration of goods is approved by the Order of the Ministry of Finance of Ukraine No.614 dated 28.05.2012
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The procedure for filling out the declaration is determined by the Order of the Ministry of Finance of Ukraine No.614 dated 28.05.2012
Other documents that according to the law can be used instead of customs declaration
According to the law, in some cases instead of the customs declaration on the SAD form other documents for declaration of the goods can be used. Such cases and documents are given below in subsection 4.3.
4.2. Transport documents
The Customs Code of Ukraine does not specifically define the concept of "transport documents", but based on the general practice of customs procedures, it can be determined that transport documents include documents accompanying the cargo during transportation, and that are used to identify participants of the foreign economic operation, to identify the goods value, quality, quantity, as well as documents that in the cases provided by the CCU can replace the customs declaration.
The purpose of customs control procedures is to check what goods cross the border, to prevent smuggling and uncontrolled crossing of border by prohibited or controlled substances / goods, as well as to prevent violation of international agreements to which Ukraine is a party. For this purpose, at various stages of transportation and crossing the customs border, documents for the transported goods (both for import/export and in transit) are being checked, as well as passengers and their belongings and luggage. In this regard, the customs authorities are provided with shipping documents, as well as various derivative declarations formed on the basis of data available to carriers. For the purposes of this section and in the framework of Ukrainian customs formalities, the term "transport documents" comprises a set of documents related to the procedure of crossing the border on different transportation modes.
The basic transport documents for all transportation modes, with some differences related to their specifics, are covered below.
Commercial documents
For all modes of transport, these are the documents for the transported goods, which contain information including the name and address of the carrier, the country of departure and destination, the name and address of the sender (or seller) and consignee, conditions of their transfer, quantity and cost. Usually such documents are invoice or pro-forma Invoice. From the point of view of customs clearance, the main function of the invoice is the accompanying function, but it has also the function of a settlement document. Invoice is used for transactions with the transfer of property rights on a commercial basis, while pro-forma invoice is used for free transmissions and temporary import / export.
Another commercial document is the delivery specification, which determines the name, total volume, price and value of goods.
At customs clearance of goods transported by pipeline transport or power supply lines the act of acceptance-transfer of the goods or the certificate confirming the quantity of goods is also provided.
Vehicle registration documents
These are the documents that contain information about the state registration of the vehicle (nationality), operator, name, board number and other identification information.
For road transport, such document is a technical passport for the car and trailer (if available) and / or documents on the right of joint ownership of the vehicle. The name of the document may differ depending on the country of registration.
For air transport, this is information on the marks of nationality and registration or military mark of the vessel, flight number, route number, departure point and point of arrival of the aircraft; information on the name of the enterprise (organization, institution) operating the vessel and the number of crew members.
For maritime transport, it is a general declaration containing, in particular, the name and description of the vessel, information on its registration and nationality, the surname of the captain, the surname and address of the ship's agent. The form of the general declaration is defined by the International standards.
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The form of the General Declaration is approved by the International Maritime Organization. The IMO General Declaration can be found at www.imo.org
Commodity transport document
This document confirms the acceptance of goods by the carrier, identifies the consignor and the consignee, the information about the transport agent, the date, the volume of the goods, packaging and the generally accepted identification of hazardous properties.
For road transport, the International Consignment Note (CMR) is used - an international consignment note which is used in international trade, or the TIR carnet. Completion of the CMR is regulated by the Convention on the Contract for the International Carriage of Goods by Road (Convention relative to the contract of carriage by international transport). Its form is not uniform and may differ in different countries.
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The TIR carnet is described in section 4.3.
Air way-bill (AWB), which is a unified international document, is used in air transportation.
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The AWB Form is provided by IATA Cargo Services Resolution. One may familiarize themselves with it on the website www.iata.org
In the course of transportation by sea, a bill of lading is used that is a shipment document that, by partly reproducing the terms of the contract for carriage of goods by sea, certifies the fact of accepting the cargo for the carriage by sea transport and the performance of the parties’ obligations related to it. If an entire vessel or its portion is chartered for the cargo, the contract of sea transportation shall be formalized by a charter party or a charter.
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The form of the bill of lading is not unified and is different at various sea shipping companies. The drawing up of the bill of lading is regulated by the following:
-The Hague Rules that were officially approved in 1921 (InternationalConvention for the Unification of Certain Rules of Law Relating to Bills ofLading);
-The Hague–Visby Rules in accordance with the Brussels Protocol of 1968 torevise the Hague Rules of 1921;
-the Hamburg Rules in accordance with the current United Nations Convention onthe Carriage of Goods by Sea/River, 1978
Railroad transport uses SMGS way-bills, СІМ and a CIM/SMGS unified way-bills.
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The form and rules for completing the way-bill are provided by Annex 6 to the Agreement on International Goods Transport by Rail of 01.11.1951.
When postal items are transported, one may find the document to accompany them provided by the acts of the Universal Postal Union.
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The forms of the documents of the Universal Postal Union can be found at: https://www.upu.int/en/Postal-Solutions/Programmes-Services/Physical-Services/Letter-Post-Forms
Documents of title to goods
For the purposes of this Section, the documents of title to goods shall be the documents that provide a more detailed information concerning the quantity and origin of the cargo, the type of its packaging, the requirements to its reloading, opening, and storage. These are the documents that are used for the importation to the buyer’s country and crossing transit countries. Customarily, these include packing slips and packing sheets, certificates of quality and origin, the weight evidence, shipping specifications, transfer and cargo inspection instructions etc.
Derivative declarations
These are declarations and other documents that have a declarative nature that are drawn up by the carriers or authorized persons with regard to cargoes and passengers that are on board the vehicle based on the above-listed source documents.
Such derivative documents include the following:
1) for all types of transport, except pipeline:
- general declaration of arrival (GDA);
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More detailed information on the general declaration of arrival is given in section 4.1
2) for air transport:
- Cargo Manifest;
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The form and requirements for filling in the Cargo Manifest are given in the Order of the State Service of Ukraine for Aviation Safety Supervision No. 822dated 02.11.2005.
- a document containing information on supplies (on-board supplies) and on the amount of supplies (on-board supplies) loaded on board and unloaded from the vessel;
- information on the number of crew members;
- the number of passengers on the ship, their names and initials, landing and disembarkation points; information on passengers' luggage (passenger boarding list);
- information about the presence (absence) on board of goods import of which into Ukraine is prohibited or restricted, including currency values available to the crew, medicines, which include narcotic, potent, psychotropic and poisonous substances;
3) for railway transport:
- transfer freight bill for the railway rolling stock;
- document certifying the availability of supplies (if there are any);
4) for maritime transport:
- cargo declaration which contains in particular information on the ports of departure, ports of call, loading and unloading of goods, the first port of shipment, port of unloading of goods that remain on board, list of bills of lading, number of cargo places, description and type of goods packaging to be unloaded at this port;
- declaration of supplies (ship's stores) available on the ship and their quantity;
- declaration of personal belongings of the ship's crew;
- ship's role with information on the number and composition of crew members at the arrival and departure of the ship, in particular, surnames, names, citizenship, title or position, date and place of birth, type and number of identification document;
- list of passengers with information about passengers present on vessel at arrival and departure, in particular, the number of passengers on board, surnames, names, citizenship, date and place of birth, ports of embarkation and disembarkation;
- information about the presence (absence) on board of goods import of which into Ukraine is prohibited or restricted, including currency values available to the crew, medicines, which include narcotic, potent, psychotropic and poisonous substances;
- information about the presence (absence) on board of dangerous goods, weapons and ammunition.
Other documents
1) Material Safety Datasheet (MSDS) - a document that reflects in detail the dangerous properties of cargo (if any) that affects the conditions and type of transportation within Ukraine, the carrier's admission to transportation, and also in some cases allows to define the goods that are subject to the state export control or licensing.
2) Insurance policy – in case the insurance is mandatory under the terms of the supply contract or voluntarily carried out by the importer. It is used to determine the customs value to carry out the import procedures.
3) Documents (permits, certificates) confirming the goods properties in case of supply with pipeline transport or power lines.
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The list of documents required for customs control and customs clearance of goods and vehicles moving across the customs border of Ukraine is determined by the Resolution of the Cabinet of Ministers of Ukraine No. 80 dated February 1,2006 (https://www.kmu.gov.ua/npas/28438605)
4.3. Other documents confirming the right of ownership / possession or use / release of goods.
One of the main documents used to determine the right of ownership / possession or use of goods is a foreign trade agreement, the form of which is approved by the Regulation on the form of foreign trade agreements (contracts). The agreement (contract) is concluded according to the Law of Ukraine "About foreign economic activity" and other laws of Ukraine taking into account international agreements of Ukraine. However, for the declaration purpose the CCU provides for the submission of a copy of a foreign trade contract or a document that replaces it.
To ensure the requirement of the CCU to provide information on the foreign trade transaction, the following data shall be indicated in such document: full name of the parties - participants in the foreign trade transaction; goods / services that one of the contractors is obliged to deliver (perform) with the exact name, trademark, brand or the end result of the performed work; quantity and quality of goods; type of transport and basic terms of delivery; unit price of goods and total cost of goods; terms of payments; packaging and labeling of goods and other details. Thus, this document becomes a full-fledged substitute for the contract. Such document may be in a form of an offer-acceptance, invoice-order, correspondence of the parties containing all the necessary information about the transaction, etc.
In some cases, the right of disposal may be confirmed by documents confirming the alienation, transfer, gift, ownership of the object crossing the border, etc.
In addition to the document replacing the contract, the Customs Code of Ukraine provides also for the replacement of standard declarations i.e. documents confirming the right of ownership / possession or use / release of goods.
Such replacement is possible in the following cases:
- in case of transportation of goods in the customs transit regime, if the CCU or other documents do not explicitly state the need to use a standard document;
- when the customs regime of re-import and customs warehouse is applied;
- when Ukraine's accession to International Treaties that regulate such documents and their forms is legally formalized.
A change in the customs documents under the “transit” customs regime
The Customs Code of Ukraine provides that when the goods are formally placed under the customs regime of transit the following shall apply:
- depending on the mode of transport, in the event of a transit within the boundaries of one checkpoint or to declare the goods that are not excisable goods, air way-bill or a bill of lading may be used instead of a customs declaration:
- to declare the goods that are not excisable goods, a SMGS way-bill or a СIМ way-bill, a CIM/SMGS way-bill, or a Carnet TIR may be used instead of the customs declaration;
- irrespective of the mode of transport, to declare goods and commercial-purpose vehicles under the customs regime of transit, an ATA Carnet or a CPD Carnet may be used;
- in the cases envisioned by international agreements of Ukraine entered into in accordance with law, the documents provided by such agreements shall be used to declare the transit of goods and commercial vehicles under the customs regime of transit;
- to declare commercial vehicles that are being moved between the European Union, member countries of the European Free Trade Association and individual countries that are members of the Convention on a Common Transit Procedure and Ukraine, customs declarations of individual types may be used that are in line with the types of the customs declarations implemented by the said Convention.
Replacement of customs documents under the customs regimes of “re-import” and “customs warehouse”
The Customs Code of Ukraine, in particular, has the following provisions concerning the application of the customs regime of re-import and the conditions for the placement of goods under the customs regime of customs warehouse:
- to declare packaging, containers, pallets and commercial vehicles under the customs regime of re-import, the documents are used instead of the customs declaration that confirm the previous importation of the said goods beyond the customs territory of Ukraine (Article 79 of the Customs Code of Ukraine);
- to place goods that had been placed under other than customs warehouse customs regimes (transit, temporary import, processing in the customs territory, export, processing beyond the customs territory) at the customs warehouse for their storage, reloading or additional loading on the vehicle, shall be performed based on the customs declaration that had been formalized earlier in accordance with such customs regimes or a document that replaced it – an SMGS way-bill, a СIМ way-bill, a CIM/SMGS way-bill, a Carnet TIR etc. In this case, the placement of such goods under the customs regime of customs warehouse does not occur (Article 122 of the Customs Code of Ukraine).
Replacement of documents within the framework of international conventions
Ukraine is a party to 2 international conventions:
- Customs Convention on the International Transport of Goods under Cover of TIR Carnets (TIR Convention);
- Istanbul Convention on Temporary Admission (Istanbul Convention)
TIR Convention
The TIR Convention was signed by the member states in order to create an international system of cargo transportation, which simplifies the procedures for their registration when crossing borders. In addition, the use of the TIR Carnet has favored to partially resolve the issue of guaranteeing the customs duties payment on goods transported by road and railway by providing international guarantee.
The Convention stipulates that goods transported in accordance with the TIR procedures shall be exempt from payment or deposit of import or export duties, taxes and charges at the transit customs. Fees for customs clearance of TIR Carnets are not charged at these customs offices. In addition, goods transported in accordance with the TIR procedures, in sealed vehicles or containers, are generally exempt from customs inspection at transit customs.
Customs inspection at these customs offices may be carried out in exceptional cases, if there are sufficient grounds to consider that the sealed compartments of vehicles or containers contain items not specified in the TIR Carnet manifest.
Transportation under the TIR procedure is carried out on the basis of the TIR Carnet – a customs consignment note which gives the right to transport goods across the borders. The document covers road and railway transportation of goods (carried out in vans, trailers, semi-trailers and containers) between states that recognize the Customs Convention on the International Transport of Goods under Cover of TIR Carnets.
The TIR Carnet replaces the road international consignment note and the railway CIM / SMGT consignment notes.
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The form of the TIR Carnet is internationally recognized. In Ukraine, the Association of International Road Carriers of Ukraine (ASMAP) is authorized to issue TIR Carnets.
Istanbul Convention
For the international settlement of temporary import of goods to other countries on preferential terms, in 1961 the Customs Convention on the A.T.A. for the temporary import of goods (A.T.A. Convention) was adopted.
This international agreement introduced the A.T.A. - the only international customs document accepted by the customs authorities of the Convention member-states as a customs declaration and at the same time as an international guarantee of import duties and taxes coverage in accordance with the national legislation of the country of import / transit in case of violation of temporary admission.
On the basis of the A.T.A. Convention in 1990, the Convention on Temporary Admission was signed, bringing together all existing separate international agreements on these issues.
Ukraine acceded to the Istanbul Convention on Temporary Admission in 2004, and with the accession of Ukraine’s Chamber of Commerce and Industry into the international network of guaranteeing associations, in 2008 Ukraine became a full member of the A.T.A. international system and introduced the circulation of A.T.A. carnets on its customs territory.
In order to be able to use the simplifications provided by the use of the A.T.A. carnet:
- the number or quantity of each article must be reasonable having regard to the purpose of importation;
- the customs authorities of the territory of temporary admission must be satisfied that the conditions of the Convention shall be fulfilled.
The Istanbul Convention provides for a "temporary importation document", which is an international customs document accepted as a customs declaration and allows to identify the goods (including vehicles). In the framework of Convention, the temporary admission documents may be:
- A.T.A. carnet (admission temporaire-temporary admission) used for the temporary admission of all goods described in the Convention, excluding means of transport;
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The form the A.T.A. carnet is determined by the Istanbul Convention and is internationally recognized. In Ukraine, the Chamber of Commerce and Industry of Ukraine and its regional offices are authorized to issue the A.T.A. carnets.
- CPD (Carnet de Passages en Douane) used for the temporary admission of means of transport.
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At present, there are neither legal acts that would determine the procedure or the authorized organizations to issue CPD carnets in Ukraine, nor the procedure for customs clearance of vehicles moving across the customs border of Ukraine using such an international customs document.
The scope of the A.T.A. carnets covers:
- goods for display or use at exhibitions, fairs, meetings, or similar events;
- advertising materials, samples, musical equipment, professional equipment and spare parts for its repair, containers and parts for their repair, pallets, packaging, goods imported in connection with production operations or for educational, scientific or cultural activities and spare parts for them, welfare material for seafarers.
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If the goods meet the criteria of the Istanbul Convention for temporary import/export, but require a permit or conclusion of the State Export Control Service of Ukraine to cross the border, in accordance with the Regulation on customs declarations, the customs clearance is carried with a customs declaration, thus the A.T.A. carnet is not applicable.
Regulation on customs declarations approved by the Resolution of the Cabinet of Ministers of Ukraine No. 450 dated May 21, 2012
Section 5. Transportation of strategic goods, as well as transportation of dangerous goods
Given that there is no unambiguous definition of the term "strategic goods" in Ukraine, the criteria for classifying goods as strategic for the purpose of this Handbook will be:
- priority of export development in the near future;
- the impact of imports of such goods on the development of priority industries;
- pertinent to dual-use goods;
- the presence of dangerous properties in the product.
According to the brochure on the Export Strategy of Ukraine, published by the Ministry of Economic Development and Trade of Ukraine, the promising sectors for the development of Ukrainian exports are:
- information and communication technologies;
- creative industries;
- tourism;
- aircrafts maintenance and repair;
- production of parts for the aerospace and aviation industries;
- mechanical engineering;
- food and processing industry.
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The brochure can be found at: https://bit.ly/2Cfu4CT
Given these criteria and priority areas, the following goods will be considered as strategic goods for the purposes of this Handbook:
- goods related to the development of missiles and aircrafts,- goods used for the development of military equipment (but not included into the lists of military goods),- goods associated with the production of nuclear energy.
Though other dual-use goods have an impact on the development of technologies, they do not require any additional formalities during transportation. Therefore, description of the transportation requirements to the above listed goods will demonstrate basic requirements for the movement of strategic dual-use goods (including those with hazardous properties) across the customs border of Ukraine.
5.1. Permits and authorizations provided by international and bilateral agreements
The permits are applied when strategic goods that are being discussed in this Handbook Section, are moved across the border. The permits can be of 2 types:
1) permits in the field of non-proliferation of missiles and other weapons and nuclear materials;
2) permits in the field of transportation.
The first type includes the permits of the SSECU (State Service for Export Control of Ukraine) for the transfer of dual-use and military goods and the permits of the SNRIU (State Nuclear Regulatory Inspectorate of Ukraine) for the international transportation of radioactive materials. These permits are granted in accordance with the basic principles and rules of international non-proliferation regimes (e.g., MTCR, WA, NSG) and UN Security Council Resolutions on embargoes on certain goods, as well as other international agreements on the distribution and movement of radioactive materials and nuclear technologies.
These documents are examined by the customs when goods cross the border. When goods subject to export control are being exported, it may be necessary to obtain the relevant permit in the importing country. However, this issue is not subject to customs control in the country of departure and is the responsibility of the consignee.
The second type includes permits (ordinary and special) for the international road transportion of conventional, bulky, extra heavy and dangerous cargos. Permits inspected by customs may also include certificates of admission of vehicles and drivers to international transportation and certification of vehicles for the transportation of dangerous goods.
The need to obtain permits for transportation is determined by international and bilateral agreements signed by the Government of Ukraine. Among the international agreements, the most significant in this aspect are:
- The Convention on Road Traffic;
- European Agreement concerning the International Carriage of Dangerous Goods by Road (ADR);
- Agreement concerning the Adoption of Harmonized Technical United Nations Regulations for Wheeled Vehicles, Equipment and Parts which can be Fitted and/or be Used on Wheeled Vehicles and the Conditions for Reciprocal Recognition of Approvals Granted on the Basis of these United Nations Regulations of 1958, amended in 1995 ("Geneva Agreement");
- Association Agreement with the European Union;
- European Agreement concerning the Work of Crews of Vehicles Engaged in International Road Transport (AETR);
- Agreement on Cooperation of the CIS Member States in the Field of International Road Freight Transport.
Additionally, Ukraine has concluded about 50 bilateral agreements on the international transportation of goods by road. These agreements, among other things, stipulate the receipt of:
- ordinary authorizations for international bilateral transportations, transit, cabotage, as well as transportation carried out by the vehicle of one contracting country between locations in the other contracting country and a third country;
- special permits for international transportation of oversized, heavy and dangerous goods (henceforth referred as– “DG”).
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The list of international agreements of Ukraine in the field of road transportation with the titles, dates of conclusion and entry into force can be found on the website of the Ministry of Infrastructure of Ukraine at: https://mtu.gov.ua/files/Угоди%20в%20галузі%20автомобільного%20транспорту.doc
The structure and conditions of the Agreements are standardized and in terms of permits for transportation the typical conditions are as follows:
- a separate permit must be issued for each freight vehicle, which gives the right to carry out transportation to the destination point and back, unless otherwise specified in the permit itself;
- a special permit is issued for the transportation of oversized and/ or heavy loads;
- transportation of DG is determined by the terms of ADR;
- carriers of one Party are not allowed to transport passengers and cargo between two points located in the territory of the other Party, unless authorized by the competent authorities of the other Party;
- carriers of one Party are not allowed to carry out transportation from the territory of the other Party to third countries and vice versa, unless the permit of the competent authorities of the other Party is given;
- in all cases not regulated by the relevant agreement, carriers and drivers of vehicles of one Contracting Party while being in the state territory of the other Contracting Party shall comply with its current legislation and applicable international agreements;
- moving across the border by car does not require permits.
All agreements include goods transportation of which does not require a transportation permit (hereinafter - "Permit"). A typical list of such goods is as follows:
- exhibits, equipment and materials intended for fairs and exhibitions;
- vehicles, animals, as well as a variety of equipment and property intended for sporting events;
- theatrical scenery and props, musical instruments, equipment and accessories for filming, radio and television programs;
- bodies or ashes of the dead;
- mail;
- damaged vehicles;
- movable property during resettlement;
- bees and fish fry;
- cargoes transported by vehicles, the maximum permissible gross weight of which, including trailers, does not exceed 6 tons or the maximum payload of which, including the payload of trailers, does not exceed 3.5 tons (hereinafter - "trucks up to 6 tons");
- medical equipment and materials for emergency care in case of natural disasters;
- technical assistance vehicles.
Deviations from the standard conditions in agreements with individual countries are listed in the table 5.1.1., namely:
- additional to standard goods, transportation of which does not require a permit;
- goods that are not included into the list goods transportation of which does not require a permit;
- additional conditions for issuing permits;
- prohibitions on cabotage or transportation to/from third countries;
- the need to obtain a special permit for the transportation of DG;
- other conditions and additional information.
Table 5.1.1. Deviations from the standard conditions in the bilateral agreements of Ukraine in the field of cargo transportation.
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Permits fortransportation of goods
the Republic of Belarus
1. Notincluded into the list of goods transportation of which does not require apermit:
- bees and fish fry;
- technical assistance vehicles
2. A special permit is required for the transportation of DG.
Montenegro
1. Do not require a permit for transportation:
- empty freight vehicles intended for replacement of a damaged freightvehicle in the state territory of one of the Contracting Parties.
2. A special permit is required for the transportation of DG.
the Republic of Moldova
Not includedinto the list of goods transportation of which does not require a permit:
- mail;
- damagedvehicles;
- bees and fish fry;
- trucks upto 6 tons;
- medicalequipment and materials for emergency care in case of natural disasters;
- technicalassistance vehicles.
the Swiss Confederation,the Principality of Liechtenstein
Typical conditions.
the Republic of Serbia
1. Not included into the list of goods transportation of which does not require apermit:
- movable property during resettlement;
2. Donot require a permit for transportation:
- empty freight vehicles intended for replacement of a damaged freight vehicle in the state territory of one of the Contracting Parties.
3. Aspecial permit is required for the transportation of DG.
the Republic of Cyprus
1. Not included into the list of goods transportation of which does not require a permit:
- bees and fish fry;
- medical equipment and materials for emergency care in case of natural disasters.
2. Aspecial permit is required for the transportation of DG.
the Republic of Tajikistan
A special permit is required for the transportation of DG.
Bosnia and Herzegovina
A special permit is required for the transportation of DG.
the Portuguese Republic
1. The agreement provides for two types of permits:
- one-time permits valid for onetransportation;
- annual permits valid during therelevant calendar year.
2. Not included into the list of goods transportation of which does not require a permit:
- bees and fish fry;
2. Do not require a permit fortransportation:
- empty cargo vehicles intended toreplace vehicles that have failed in another country, as well as travel ofrepaired vehicles in the opposite direction.
the Republic of Italy
1. Not included into the list of goods transportation of which does not require a permit:
- movable property during resettlement;
- trucks up to 6 tons.
2. Donot require a permit for transportation:
- transportation of goods to or from airports in cases of temporarycancellation of air service;
- transportation of luggage by any vehicle to or from airports;
- transportation of valuables (for example, precious metals),performed by special vehicles accompanied by security;
- transportation of spare parts for sea and air navigation;
- empty vehicles intended to replace vehicles that have failed inanother country, as well as travel of repaired vehicles in the oppositedirection.
- entry of a cargo transport vehicle.
3. Cabotageis prohibited.
the United Kingdom of Great Britain and Northern Ireland
1. Not included into the list of goods transportation of which does not require a permit:
- bodies or ashes of the dead;
- movable property during resettlement;
- bees and fish fry;
- technical assistance vehicles.
2. Donot require a permit for transportation:
- carriage of goods at their own expense between the countries ofthe Contracting Parties;
- transportation of exhibits and works of art to exhibitions and for commercial purposes.
3. Cabotageis prohibited.
the Republic of Estonia
Typical conditions.
the Republic of Latvia
1. The agreement does not regulate anddoes not provide for transportation from another country to a third country.
2. A special permit is required for thetransportation of DG.
the Islamic Republic of Iran
1. Not included into the list of goods transportation of which does not require a permit:
- bees and fish fry;
- technical assistance vehicles;
- transportation of property during resettlement;
- theatrical scenery and props, musical instruments, equipment and accessories for filming, radio and television programs
2. Donot require a permit for transportation:
- one-time transportation of goods to and from airports in case ofchange of air routes;
- transportation of luggage by any means of transport to and fromairports;
- transportation of patients;
- transportation of property during resettlement, which is performed by carriers with theuse of specialized equipment and personnel.
3. Cabotageis prohibited.
4. Aspecial permit is required for the transportation of DG.
the Republic of Azerbaijan
A special permit is required for the transportation of DG.
the Republic of Finland
1. Not included into the list of goods transportation of which does not require a permit:
- mail;
- damaged vehicles;
- bees and fish fry;
- trucks up to 6 tons;
- technical assistance vehicles.
2. A special permit is required for thetransportation of DG into the territory of Ukraine.
the French Republic
1. Cabotage is prohibited
2. The carriage of goods by vehicles of one Contracting Party from the territory of the other Contracting Party to third countries shall be carried out on the basis of special permits, or without special permits provided that the transit is carried out through the territory of the country of registration of this vehicle and with the presence of the relevant permits stipulated by the Agreement.
Romania
1. Donot require a permit for transportation:
- vehicles purchased during their first empty run to the country where they will be registered.
2. Aspecial permit is required for the transportation of DG.
the Hellenic Republic
1. Donot require a permit for transportation:
- transportation of flowers or other ornamental plants.
2. Cabotageis prohibited.
the Kingdom of Spain
1. Cabotage is prohibited.
2. Permits that are valid for one trip(in two directions) are valid for 3 months from the date of their issuance to the carrier.
3. Aspecial permit is required for the transportation of DG.
the Russian Federation
1. Carriage of goods between twocountries in bilateral communication is carried out without permits.
2. Transit is carried out with permits.
3. Not included into the list of goodstransportation of which does not require a permit:
- vehicles up to 6 tons;
- bees and fish fry.
4. A special permit is required for thetransportation of DG.
the Czech Republic
1. The carriage of goods between one of the Contracting Parties and a third country shall be carried out on the basis of bilateral permits, provided that the transportation route passes through the territory of the country of registration of the vehicle. Failure to comply with this condition requires special permission from the competent authorities.
2. A special permit is required for thetransportation of DG.
the Kingdom of Denmark
1. The permit shall entitle the carrier on the way back to his country to carry goods from the territory of the other Contracting Party, if these goods are destined for the country of registration of the vehicle.
2. Not included into the list of goodstransportation of which does not require a permit:
-mail;
-bees and fish fry.
3. A special permit is required for thetransportation of DG.
the Kingdom of Sweden
1. Not included into the list of goodstransportation of which does not require a permit:
- movable property during resettlement.
2. A special permit is required for the transportation of DG.
the Kingdom of Belgium
1. Not included into the list of goodstransportation of which does not require a permit:
-mail;
2. Cabotage is prohibited.
3. Each permit shall be issued for a period of13 months from the 1st of January of each calendar year.
the Republic of Armenia
A special permit is required for the transportation of DG.
Mongolia
Not included into the list of goods transportation of which does not require a permit:
- vehicles up to 6 tons;
- bees and fish fry.
the Slovak Republic
1. Do not require a permit for transportation:
- transportation of goods to and from the airport in case of cancelled flight;
- transportation of live animals.
2. A special permit is required for thetransportation of DG.
the Republic of Bulgaria
1. Not included into the list of goods transportation of which does not require a permit:
- bees and fish fry.
2. Do not require a permit fortransportation:
- purchased vehicles during their firstempty ride.
the Republic of Turkey
1. Not included into the list of goods transportation of which does not require a permit:
- vehicles up to 6 tons;
- beesand fish fry.
2. Do not require a permit for transportation:
- transportationof animals with the purpose to improve the breed and that are not intendedfor slaughter;
- one-time transportation of goods to and fromairports due to changes in flight routes.
3. Transportation of weapons, ammunition and military equipment, as well as explosives between the Contracting Parties or transit through the territory of one of the Contracting Parties may be carried out only after obtaining special permission.
4. A special permit is required for thetransportation of DG.
5. Transportation of goods that are prohibited for importation in order to protect the health of humans, animals and plants may not be carried out between the Contracting Parties and in transit through the territories of the Contracting Parties.
6. Cabotage is prohibited.
Hungary
1. Not included into the list of goods transportation of which does not require a permit:
- mail;
- beesand fish fry;
- trucksup to 6 tons.
2. Do not require a permit fortransportation:
- the first empty rides of freight vehicles (road trains) purchased for the carriers of one of the Contracting Parties;
- transportationin the border area.
3. Aspecial permit is required for the transportation of DG.
the Kingdom of the Netherlands
Not included into the list of goods transportation of which does notrequire a permit:
- bodies or ashes of the dead;
- bees and fish fry;
- exhibits,equipment and materials intended for fairs and exhibitions;
- vehicles, animals, as well as a variety of equipment and property intended for sporting events;
- movableproperty during resettlement.
the Republic of Lithuania
1. Not included into the list of goods transportation of which does not require a permit:
- beesand fish fry.
2. A special permit is required for thetransportation of DG.
the Federal Republic of Germany
1. Not included into the list of goodstransportation of which does not require a permit:
- mail;
- bees and fish fry;
- damagedvehicles;
- technicalassistance vehicles.
2. Do not require a permit fortransportation:
- animals.
3. One permit is valid for any number offlights for the period specified therein (temporary permit) or for one or acertain number of flights back and forth for the period specified in thepermit (flight permit).
4. Transportation between the other Contracting Party and the third country shall be permitted only if it is carried out by the usual route through the territory of the Contracting Party where the vehicle is registered.
5. Cabotage is prohibited.
6. The agreement does not regulate thetransportation of DG, bulky and heavy cargoes.
Georgia
1. Not included into the list of goodstransportation of which does not require a permit:
- mail.
2. A special permit is required for thetransportation of DG.
Turkmenistan
1. Not included into the list of goodstransportation of which does not require a permit:
- mail;
- trucksup to 6 tons;
- damagedvehicles;
- medical equipment and materials for emergency care in case of natural disasters;
- technicalassistance vehicles;
- beesand fish fry.
2. A special permit is required for the transportation of DG.
the Republic of Kazakhstan
1. Not included into the list of goods transportation of which does not require a permit:
- beesand fish fry.
2. A special permit is required for the transportation of DG.
3. Cabotage is prohibited.
4. Transportation of arms, ammunition, military equipment, explosives and other dangerous and harmful substances that are prohibited by the domestic legislation of the Contracting Parties, shall be prohibited between the Contracting Parties and the transit of there of through their territories.
the Kyrgyz Republic
1. Not included into the list of goodstransportation of which does not require a permit:
- beesand fish fry;
- trucks up to 6 tons.
2. A special permit is required for thetransportation of DG.
3. The received permit gives the rightto carriers to transport cargoes on the return transit way to theircountries.
the Republic of Uzbekistan
1. Not included into the list of goods transportation of which does not require a permit:
- mail;
- trucksup to 6 tons;
- damaged vehicles;
- medical equipment and materials for emergency care in case of natural disasters;
- technical assistance vehicles;
- beesand fish fry.
2. Aspecial permit is required for the transportation of DG.
the Syrian Arab Republic
A special permit is required for the transportation of DG.
the Kingdom of Norway
The permit is issued for 1 trip (round trip) for a period of 13months, starting from the 1st of January of each calendar year.
the Republic of North Macedonia
1. Not included into the list of goodstransportation of which does not require a permit:
- mail;
- movable property during resettlement.
2. A special permit is required for the transportation of DG.
the Republic of Croatia
A special permit is required for the transportation of DG.
the Republic of Slovenia
A special permit is required for the transportation of DG.
the Republic of Austria
1. Permits shall be issued as one-off orfixed-term permit in the form of:
- standard permits;
- limitedpermits (for example, by place, type of cargo, for a particular vehicle ortype of transportation).
2. Do not require a permit fortransportation:
- transportationof goods to and from airports under the services provided by the airtransport;
- transportation of luggage in trailers of cars carrying passengers to their destination, and transportation of luggage by vehicles of any type to and from airports;
- transportation of animal carcasses for destruction;
- transportation of valuable goods (for example, precious metals) by special vehicles accompanied by police or other security services;
- transportationof spare parts to ships and aircrafts;
- transportation of indivisible goods carried out by trucks with specially issued permits, as an exception, for the relevant route, taking into account national requirements regarding the maximum permissible total weight.
3. Cabotage is prohibited.
the Republic of Poland
1. Not included into the list of goods transportation of which does not require a permit:
- mail;
- beesand fish fry;
- trucksup to 6 tons;
- medicalequipment and materials for emergency care in case of natural disasters.
2. Cabotage and transport to/from third countries are unstipulated.
3. Each Contracting Party reserves the right to require special permits for the carriage of dangerous goods carried out by the other Contracting Party.
5.2. General principles of international road transport of goods
Given the need to develop economic relations and the impact of cargo transportation on this process in the international practice, the following principles of international transportation have been established:
- ensuring a non-discriminatory approach to carriers, which, first of all, is to impose requirements on foreign carriers no more stringent than on their own;
- development of generally accepted norms and rules of international transportation;
- advanced training of crews and technical condition of vehicles;
- constant work on improving the safety of transportation of conventional, oversized, heavy and dangerous goods;
- ensuring control of carriers, drivers, vehicles and delivery;
- equality of approaches and parity of requirements or restrictions between the parties to bilateral and international agreements;
- providing the fastest possible access to information on changes in the legislation and rules of transportation of each country.
It is especially important to note the increase in requirements for the environmental friendliness of transportation, which results in increased requirements for the vehicles that carry them out.
5.3. Certain dual-use items as dangerous goods
When transporting goods, it must be assessed whether they are dangerous goods. According to the ADR, and also to the Law of Ukraine "On transportation of dangerous cargos", dangerous goods can be places into one or several of the following classes of danger:
#tableId {null margin: 0 auto !important; }#tableId {null margin: 0 auto !important; }#tableId {null margin: 0 auto !important; }#tableId {null margin: 0 auto !important; }#tableId {null margin: 0 auto !important; }#tableId {null margin: 0 auto !important; }#tableId {null margin: 0 auto !important; }#tableId {null margin: 0 auto !important; }#tableId {null margin: 0 auto !important; }#tableId {null margin: 0 auto !important; }#tableId {null margin: 0 auto !important; }#assignedTableId-1706615051352 {border: none; margin: 0 auto !important; }ClassNo.
DivisionNo.
Nameof class or division
1
Explosives
1.1
Explosives with a mass explosion hazard
1.2
Explosives with a projection hazard but that do not constitute amass explosion hazard
1.3
Explosives with predominately a fire hazard and a minor blast hazardor a minor projection hazard or both,but without a mass explosion hazard
1.4
Explosives with no significant blast hazard
1.5
Very insensitive explosives; blasting agents
1.6
Extremely insensitive detonating substances
2
Gases
2.1
Flammable gas
2.2
Non-flammable compressed gas
2.3
Poisonous gas
3
-
Flammable and combustible liquid
4
Flammable solid; Spontaneously combustible material;
Dangerous when wet material
4.1
Flammable solid
4.2
Spontaneously combustible material
4.3
Dangerous when wet material
5
Oxidizer and Organic peroxide
5.1
Oxidizer
5.2
Organic peroxide
6
Poisonous materials and Infectious substance
6.1
Poisonous materials
6.2
Infectious substance
7
-
Radioactive material
8
-
Corrosive material
9
-
Miscellaneous hazardous material
Note
Generally, class 9 includes cargos that comprise lithium-ion or lithium-pol batteries.
During customs clearance of dual-use goods that are listed in the Decree of the Cabinet of Ministers of Ukraine №86 of January 28, 2004 and that have dangerous properties, it is necessary to comply with the requirements of regulatory documents for the carriage of goods with dangerous properties.
A list of the principal items of strategic goods that are also included in the Annex to the Resolution of the Cabinet of Ministers of Ukraine No. 86 and the relevant types of hazards that are often characteristic of these goods are set forth in Table 5.3.1.
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Possiblehazard classes[1]
Special fissionable materials (nuclear fuel elements belong to this category)
Class 7
Equipmentand devices specifically intended for triggering charges and devicescontaining energy-related material using the electric means, namely:
…
electricdetonators or explosive devices, namely:
detonators with a resistance bridge (spark detonators);
detonators with an explosive wire jumper (current detonators);
detonatorswith a firing-pin mechanism (detonators with a striking mechanism);
detonatorswith explosive foil
Sometimes, the words “trigger” or “igniter”are used instead of the word “detonator.”
Classes 1.2 - 1.4
[24] Typical and characteristic hazard classes are set forth in the Table. However, cargoes may have other or additional hazard classes that shall be specified in the MSDS sheets or the cargoes shall be safe. The cargo shipper shall bear responsibility for assigning a safety or hazard classification to their cargo.
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An MSDS shall be an international-standard document which form is defined in the Globally Harmonized System of Classification and Labeling of Chemicals (GHS). In Ukraine, DSTU GOST 30333-2009establishes the form of the MSDS sheets.
#tableId {null margin: 0 auto !important; }#tableId {null margin: 0 auto !important; }#tableId {null margin: 0 auto !important; }#tableId {null margin: 0 auto !important; }#tableId {null margin: 0 auto !important; }#tableId {null margin: 0 auto !important; }#tableId {null margin: 0 auto !important; }#tableId {null margin: 0 auto !important; }#tableId {null margin: 0 auto !important; }#tableId {null margin: 0 auto !important; }#assignedTableId-1706616451553 {border: none; margin: 0 auto !important; }Equipmentand devices specifically intended for triggering charges and devicescontaining energy-related material using the electric means, namely:
…
electric detonators or explosive devices, namely:
detonators with a resistance bridge (spark detonators);
detonators with an explosive wire jumper (current detonators);
detonators with a firing-pin mechanism (detonators with a striking mechanism);
detonators with explosive foil
Sometimes, the words “trigger” or “igniter”are used instead of the word “detonator.”
Classes 1.2 - 1.4
Propellantfuel and propellant fuel components, except for those specified underposition 1C011 as set forth below:
…
metal powders, other than those specified inthe list of military-purpose goods…
…
hydrazine derivatives...
Classes 3, 4.1, 4.3, 6.1, 8
Classes 4.1, 4.3
Classes 3, 6.1, 8
High-speedprojection systems (powder, gas, coil, electromagnetic and electro thermal aswell as other advanced systems)...
Classes 1.2 - 1.3, 2.1, 4.1, 4.3
Space booster rockets, “spacecraft,” “space platforms,” “payload of space vehicles,” on board systems or on board equipment of space vehicles...
Classes 3, 6.1, 8, 9
Rocket propulsion systems on liquid fuel[25]…
Classes 3, 6.1, 8
Rocket propulsion systems on solid fuel[26]…
Classes 1.3 - 1.6, 4.1, 4.3
Hybrid rocket propulsion systems...
Classes 2.1, 2.2, 3, 4.1, 4.3, 6.1, 8
“Unmanned flying vehicles” (“UAV”), unmannedair ships, appropriate equipment and components, namely:
Class 9
Meteorological rockets...
Classes 1.3 - 1.6, 4.1, 4.3
Hybrid rocket engines and the components specifically intended for them
Classes 3, 4.1, 4.3, 6.1, 8
The hazard characteristics of the cargo shall not affect the FEACN classification (Foreign Economic Activity Commodity Nomenclature) and the tariff regulation components of export/import.
[25] A propulsion systems on liquid fuel may be categorized as a hazard cargo in the event it is supplied charged with fuel or has fuel residues (for example, after tests).
[26] If a propulsion system on solid fuel is supplied uncharged, it shall be allowed not to categorize it as a hazard cargo.
5.4. Regulations for the carriage of dangerous goods through the customs territory
Transportation of dangerous goods through the customs territory of Ukraine is regulated by the Law of Ukraine "On Transportation of Dangerous Goods", Codes of Transport of Dangerous Goods by Land, Sea and Air Transport (respectively, ADR/RID, MTRDG (maritime transportation rules of dangerous goods), IATA DGR), international and bilateral agreements. Transportation of radioactive materials is additionally regulated by the Law of Ukraine "On the Use of Nuclear Energy and Radiation Safety".
Transportation of goods may be carried out in exempted quantities (the presence of exempted quantities in each substance and its value is determined by each code separately), which does not require licenses to transport DG, driver's admission to such transportation or compliance with specific conditions and requirements of legislation on transportation. If the volume of substances or materials transported exceeds the established exempted quantities, it is required to use vehicles with a certificate of admission to the transportation of dangerous goods, and crews trained in the field of transportation of dangerous goods. In accordance with bilateral conditions with some countries for the carriage of any DG, it is necessary to obtain a special permit for transportation. It is mandatory to obtain a transport permit for the transportation of radioactive materials. For transportation of cargoes of a 1.1. class of danger, it is mandatory to involve cargo escorting.
When transporting dangerous goods, it is obligatory to mark them in accordance with the Code of transportation of DG by appropriate transport. It is also obligatory to put danger signs on motor vehicles, corresponding to the transported cargo, in accordance with ADR.
In accordance with the Law of Ukraine "On Transportation of Dangerous Goods" the responsibilities of the carrier are:
- in case of road transport, to develop and agree with the National Police authorities the routes and modes of transport of dangerous goods; to ensure timely inspection of vehicles by the territorial bodies of the Ministry of Internal Affairs of Ukraine, and to obtain the relevant certificate of admission to the transportation of dangerous goods; during transportation do not deviate from the agreed route, adhere to safe traffic conditions and constantly monitor the condition of the vehicle and cargo;
- to provide special training, advanced training of persons engaged in the transportation of dangerous goods, and their medical examination; in case of road transportation, to ensure that drivers receive certificates of admission to the transportation of dangerous goods of the established standard after training and passing the relevant examinations in the territorial bodies of the Ministry of Internal Affairs of Ukraine;
- to underwrite liability of subjects of transportation of dangerous cargoes in the established order.
Transit of dangerous goods through the territory of Ukraine is carried out exclusively in direct connection with one mode of transport without reloading on another.
Section 6. Risk management system in relation to goods subject to customs clearance
6.1. Brief overview of risk management system
Ukraine's European integration processes necessitate optimization and simplification of customs control based on the application of a risk management system.
The purpose of the risk management system is to accelerate the customs clearance of goods ensuring the selectivity of customs control by focusing the attention of customs authorities on high-risk foreign economic transactions that allows simplifying customs formalities for bona-fide subjects of foreign economic activity.
Customs authorities use the risk management system to identify goods, vehicles, documents and persons subject to customs control.
Automated Risk Analysis and Management System (ARAMS) is a set of software and information systems that ensure the functioning of the Risk Management System (RMS) during customs control and clearance of goods and vehicles. With the general tendency to reduce the physical inspection, the automated risk management system becomes one of the main factors in the prompt conduct of customs formalities.
ARAMS is based on the experience of preventing, forecasting and detecting violations of customs legislation. The main areas of control of ARAMS are the declaration accuracy, customs value correctness, country of origin and classification of goods in accordance with UCGFEA (Ukrainian Classifier of Goods of Foreign Economic Activities), compliance with non-tariff regulations, etc.
Another feature of ARAMS is that it allows taking into account the previous behavior of the subject of foreign economic activity during the risk assessment. The database accumulates so-called positive and negative records, the use of which allows to automatically adjust the risk assessment over time.
Hence, ARAMS contains a balanced approach to risk assessment of the customs declaration using the risk profiles introduced into the system. The main task of ARAMS is to assess the risk of the customs declaration accepted for customs clearance on the basis of all existing profiles and to issue a notification indicating the necessary measures.
ARAMS operates at the central and regional levels. ARAMS at the central level (central profiling) ensures the same scope and forms of customs control of goods and commercial vehicles regardless of the customs authority that the customs declaration is submitted to. In addition, the customs offices use individually the regional risk profiles that are filled with consideration for the risk areas specific to these regions. However, if an official person decides that a certain customs formality is required for goods or vehicles, information about such decision is immediately entered by this official person into the automated risk management system.
Thus, the list of customs formalities is formed based on the results of automated control using a risk management system, and can be supplemented/adjusted by the customs based on the results of non-automated control using a risk management system.
In accordance with the Customs Code of Ukraine, Section XI, Chapter 52, second part of Article 363, the Order of the Ministry of Finance of Ukraine approved the Procedure for the risk analysis and assessment, development and implementation of risk management measures to determine the forms and scope of customs control (hereinafter - Procedure № 684)
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Procedure № 684 — Procedure for the risk analysis and assessment, development and implementation of risk management measures to determine the forms and scope of customs control, approved by the Order of the Ministry of Finance of Ukraine № 684 dated 31.07.2015
6.2. Identification and assessment of risks
Creation of the risk management system database at the customs authorities involves maintenance of the risk database by the State Customs Service.
The risk database is formed using the available information on identified and potential risks of non-compliance with the requirements of Ukrainian legislation on customs matters, including those received from the customs officials.
In order to keep the risk database up to date, customs officials enter information on potential risks of non-compliance with the requirements of Ukrainian legislation on customs matters.
The risk database includes, in particular, information on:
- possible cases of non-compliance with the requirements of Ukrainian legislation on customs matters received from another public authority, the competent authority of another country or from any other source of information;
- circumstances that may affect the results of customs control (for example, the detection of empty caches in the vehicle).
The risk database is a source of information that can be used by customs authorities (their structural units) in the risk management process.
Implementation of analysis, detection and assessment of risks, including with the use of information technology, to determine the forms and scope of customs control by customs authorities (their structural units) include:
1) identification of conditions and factors influencing the occurrence of risks;
2) identification of risk areas;
3) identification of risk indicators;
4) risk probability estimation and assessment of possible damage in case of their occurrence.
Analysis, identification and assessment of risks, development and implementation of practical measures for risk management, analysis of results and adjustment of measures taken are carried out by the customs authorities (their structural units) within their competence.
The State Customs Service determines its structural subdivision which is entrusted with the functions of coordination the application of the Risk Management System (RMS) (hereinafter - the central unit for coordination of the RMS application).
Development and implementation of practical measures for risk management are carried out taking into account the results of:
1) risk analysis and assessment;
2) analysis of the relevant resources and expected results of the planned activities.
Control with the application of the RMS, carried out in accordance with Article 337 of the Customs Code of Ukraine, may be automated, non-automated and combined.
Automated control with the use of the RMS is carried out using information technology, including ARMS.
Non-automated control with the use of the RMS is carried out in cases where risk assessment in a particular case of customs control of goods/vehicles cannot be carried out automatically.
Combined control with the use of the RMS is a combination of automated and non-automated control with the use of the RMS.
Targeting belongs to the combined control with the use of the RMS.
Automated and combined control with the use of the RMS is preferred when developing risk management measures.
In order to ensure the implementation of targeting, the targeting centers may be established at the central and/or regional levels of the State Customs Service.
Based on the results of control with the use of the RMS, including ARMS, in each case the level of risk is determined, as well as the corresponding forms and scope of customs control to be performed by customs authorities during customs control, namely:
- low level, at which the results of the RMS application do not establish the need for customs formalities;
- the average level, which establishes the need for customs formalities not related to customs inspection (re-inspection) of goods/vehicles;
- a high level, at which the need for customs formalities is established, that in particular, provide for the implementation of customs inspection (re-inspection) of goods/vehicles.
Based on the results of control with the use of the ARMS, the customs official may be informed about the necessity to carry out customs formalities that meet one of the above listed levels of risk for the further decision-making.
6.3. Risk profiles
Depending on the possibility of their automated application, risk profiles can be documentary (non-automated control with the use of RMS) or electronic (automated or combined control with the use of RMS).
Risk profiles are developed by the central unit for coordination of the RMS application, and are used in all customs offices (customs posts) of the State Customs Service, unless otherwise specified by the risk profile.
Customs authorities (their structural subdivisions) provide proposals for the development of risk profiles, in particular by entering information into the risk database.
The risk profile can be presented in the forms of the risk profile passport and the risk profile program code.
The risk profile passport is generated for documentary and electronic risk profiles and is used to document the risk profile. The content of the risk profile passport is intended for the use by customs authorities (their structural units) exclusively and is a document for official use.
The risk profile passport is kept for the duration of the risk profile, but not less than 3 years after its termination. Accounting, storage and use of the risk profile passports are carried out in accordance with the regulations of Ukraine governing the accounting, storage and use of documents containing official information.
The risk profile program code is formed only for the electronic risk profiles and is integrated into a separate module of the ARMS software.
ARMS modules are developed and implemented into the UAIS (Unified Automated Information System of Customs Authorities), including ACCS (Automated Customs Clearance System) and may take into account, in particular, customs regimes, special features, means and methods of movement across Ukraine's customs border of certain goods, vehicles, etc.
To report the grounds for the development of a risk profile and the risk areas that it covers, an analytical reference to the risk profile is formed. Analytical reference can be generated by the information technology, including information from the risk database.
Depending on the need to fill in the risk profiles with the values of the risk indicators, the usual (do not require filling in during application) and framework (require filling in during application) risk profiles are used. To fill in the risk profile means to determine specific values of individual risk indicators and other parameters of the risk profile (the list of relevant risk indicators and other parameters of the risk profile is determined in the risk profile).
If the risk profile requires to be filled in, the risk indicators and other parameters of the risk profile, the customs authority responsible for filling it in (its structural unit), the frequency of filling in/updating of the individual risk indicators and other risk profile parameters are to be indicated in the risk profile passport.
The risk profile may contain one or more risk-related rules. For framework risk profiles, the number of risk-related rules is determined by the number of combinations of specific values of individual risk indicators and other parameters of the risk profile.
Risk profiles are filled in with risk indicators values that can take into account regional and local specificities.
Background risk profiles allow conducting additional study and/or clarification of the risk area, monitoring of the risk area and taking prompt response measures based on the results of such monitoring. They do not involve generation of a list of customs formalities as identified in result of the application of such risk profiles. The passport of the background risk profile shall indicate the customs authority (its structural subdivision) responsible for monitoring the operation of the risk profile and the method of such monitoring.
Development of a risk profile involves:
1) determining the risk indicators;
2) determining the appropriateness of the use of negative and positive history in the risk profile (carried out only for electronic risk profiles);
3) determining the algorithm for calculating the risk degree according to the risk profile and the adequate measures necessary to prevent or minimize risks (forms and scope of customs control), if the need to determine such measures is provided by the risk profile.
Decisions on approval and implementation of electronic risk profiles, changes to them, termination of electronic risk profiles shall be made by the Expert Commission, except in cases specified in paragraph 10 of Section II of Procedure № 684. The Expert Commission shall also decide on approval and implementation of standard analysis conditions (hereinafter – SAC), making changes to them and terminating them. Decisions of the Expert Commission are made during meetings and/or by using information technology with the use of qualified electronic signatures by members of the Commission. Decisions of the Expert Commission are recorded in the minutes of the meeting and are binding to the customs authorities (their structural units).
Documents approved by the Expert Commission, which require program implementation by the structural unit of the State Customs Service responsible for the support of information technology (hereinafter - the structural IT unit), are made in duplicate. The first copy of the documents are sent by letter of the central unit for coordination of the RMS application to the structural IT unit for the implementation in accordance with the deadlines set in the minutes of the Expert Commission, and the second one is kept at the central unit for coordination of the RMS application.
Documents approved by the Expert Commission, which do not require software implementation by the structural IT unit, and that are to be implemented by the central unit for coordination of the RMS application with the use of the UAIS functionality, including ACCS, are prepared in one copy and are kept at the central unit for coordination of the RMS application.
If other customs authorities (their structural subdivisions) are involved in filling in or monitoring the effectiveness of the risk profile, additional duplicates of the documents may be approved or copies may be made in accordance with the established procedure.
In case of application of information technologies by the Expert Commission, the information on the adopted decisions, including their software implementation, may be sent with the use of the relevant information and telecommunication systems.
The decision to make changes into the electronic risk profile may be made by the central unit for coordination of the RMS application, if they are related to:
1) the changes in the documents which were taken into account during the development of the risk profile, and the need to update the relevant values of the individual risk profile parameters;
2) the changes in the numerical values of the positive / negative history of the risk profile, the degree of risk;
3) the necessity to correct the technical errors in the risk profile passport.
The central unit for coordination of the RMS application temporarily suspends the electronic risk profile, including at the request of the customs authority (its structural subdivision), in case:
1) the changes have been made into the documents which were taken into account during the development of the electronic risk profile, and when such changes lead to the need for significant changes in the electronic risk profile;
2) the documents which were taken into account during the development of the electronic risk profile have been cancelled or invalidated;
3) the electronic risk profile has lost its relevance;
4) the problematic issues have been identified during the application of the electronic risk profile that cannot be resolved by introducing changes in accordance with paragraph 10 of Section II of the Procedure № 684;
5) a low effectiveness of a separate risk profile has been established based on the results of RMS application.
Decisions made in accordance with paragraphs 10, 11 of Section II of the Procedure № 684 on electronic risk profiles, the software implementation of which was carried out by the central unit for coordination of the RMS application with the use of the UAIS functionality, including ACCS, are made in the form of the reference note with the signature of the Head (or a person performing such duties) or the Deputy Head (or a person performing such duties) of the central unit for coordination of the RMS application.
Decisions made in accordance with paragraphs 10, 11 of Section II of Procedure № 684 on electronic risk profiles, the program implementation of which was carried out by the structural IT unit, are generated in the form of a letter from the central unit for coordination of the RMS application to the structural IT unit.
Relevant decisions are submitted for discussion at the regular meetings of the Expert Commission in order to decide on the need for further changes or termination of the risk profile.
Decisions made in accordance with paragraph 11 of Section II of Procedure № 684 on electronic risk profiles developed by the central unit for coordination of the RMS application at the initiative of another customs authority (its structural unit), are immediately communicated to such body (unit) to take action:
- to reconsider the values of individual risk indicators and other parameters of the risk profile;
- to improve the effectiveness of the risk profile.
If initiator of an electronic risk profile development has not taken measures to reconsider the values of individual risk indicators and other parameters of the risk profile and/or other measures to improve the effectiveness of the risk profile within a month, the termination of such risk profile is reviewed at the next meeting of the Expert Commission.
Electronic risk profiles are communicated to the customs (customs posts) of the State Customs Service by the software methods, including in the form of ACCS updates. The electronic framework risk profile is filled in by the customs authority (its structural subdivision) responsible for filling in the relevant framework risk profile. The electronic risk profile is filled in on the basis of additions to the risk profile signed by the Head (or a person performing such duties) or Deputy Head (or a person performing such duties) of such customs authority (its structural unit). The signed additions are sent for further implementation to the structural IT unit or are made independently by the relevant customs authority (its structural unit). Decisions on approval and implementation of documentary risk profiles, changes to them, termination of documentary risk profiles are made in the manner prescribed for electronic risk profiles.
Based on the information on the results of the risk profile application, as well as other data related to the operation of the risk profile, its effectiveness is being monitored. The risk profile passport shall include the customs authority (its structural subdivision), which is responsible for the control over the effectiveness of the risk profile, and the periodicity of such control. The general control over the risk profiles effectiveness, including with consideration of the information on the effectiveness of control carried out by the responsible customs authority (its structural subdivision) specified in the risk profile passport, is carried out by the central unit for coordination of the RMS application.
Other interested customs authorities (their structural subdivisions) may also be involved in the control over the risk profile effectiveness at the initiative of the customs authority (its structural unit) responsible for controlling the effectiveness of the risk profile or the central unit for coordination of the RMS application.
In order to systematize the information on risk profiles, the central unit for coordination of the RMS application maintains a register of risk profiles with the use of information technology.
6.4. Risk owner and risk management
To determine the forms and scope of customs control, the risk management is carried out at the strategic, tactical and operational levels.
At the strategic level of the risk management, based on the results of analysis, identification and assessment of risks, the State Customs Service determines the priority areas for the development and implementation of risk management measures and forms a register of risks. The risk register is reviewed and approved at a meeting of the Expert Commission on the application of the risk management system established by the State Customs Service (hereinafter referred to as the Expert Commission).
The risk register should contain, in particular:
1) priority directions of development and implementation of risk management measures;
2) information on the customs authorities (their structural units) responsible for the implementation of the relevant direction.
At the tactical level of risk management, customs authorities (their structural subdivisions) within their competence and based on the results of analysis, detection and assessment of risks and in accordance with the risk register develop risk management measures. The following instruments are used for this:
1) risk profiles;
2) guidelines;
3) risk indicators;
4) methodical recommendations on the work of customs officials (customs posts) on risk analysis, identification and assessment;
5) random selection.
At the operational level of risk management, customs authorities (their structural subdivisions) use risk management instruments in specific cases of customs control of goods/vehicles, in particular during the control using the RMS, to determine the forms and scope of customs control.
Based on the results of risk analysis and assessment in a particular case of movement of goods/vehicles across the customs border of Ukraine, ARMS (by performing automated control using RMS) and/or the customs officials based on the results of RMS (by performing combined and/or non-automated control with the use of RMS) choose the forms and scope of customs control. At the same time, a list of customs formalities is formed, determined by the results of applying the risk management instruments specified in paragraph 11 of Section I of the Procedure №684 (hereinafter - the List of customs formalities).
The forms and volumes of customs control from the List of customs formalities determined by the results of ARMS application can be changed by the Head/Deputy Head (or a person performing such duties) of the customs authority by adding activity-specific customs formalities already available in the List of customs formalities.
Based on the results of the RMS application, the customs authority official may supplement the List of customs formalities by including customs formalities in the new area of control, i.e. the area that was not identified as risky as a result of the ARMS.
When using ACCS or other UAIS information system for customs control and/or customs clearance of goods/vehicles, the List of customs formalities is formed with the help of information technology, based on the results of automated control with the use of RMS, and is supplemented/changed based on the results of combined and/or non-automated control with the use of RMS by risk assessment according to documentary risk profiles, guidelines, risk indicators lists, methodological recommendations, including the results of analysis of documents submitted for customs control (their copies), available information, the results of technical means of customs control, as well as on the basis of regulations governing the procedure of customs control and/or customs clearance of goods, vehicles.
The List of customs formalities contains information on:
1) the title of the customs formality;
2) subdivision / official - initiator of inclusion of customs formalities into the list, surname, initials of the official who directly supplemented the list;
3) the grounds for including customs formalities into the list with appropriate justifications;
4) notification on the customs formality.
Information in accordance with subparagraphs 2, 3 shall be entered if the customs formality is added as a result of combined and/or non-automated control with the use of RMS by risk assessment in accordance with the documentary risk profiles, guidelines, lists of risk indicators, methodological recommendations, including documents submitted for customs control (their copies), information obtained in result of applying technical means of customs control, as well as on the basis of the legal acts requirements regulating the procedure of customs control and/or customs clearance of goods/vehicles.
The list of customs formalities may also not be formed at all or may contain only a notification without specifying the customs formalities.
The decision of the customs authority official to supplement/change the List of customs formalities is made by entering the information on certain forms and scope of customs control into the ARMS.
Customs officials of the State Customs Service, who carry out customs control in a particular case of customs control of goods/vehicles, must review the list of customs formalities formed with the help of information technology and supplement/change it based on the combined and/or non-automated control with the use of RMS by the risk assessment held in accordance with documentary risk profiles, guidelines, lists of risk indicators, methodological recommendations, including the analysis of documents submitted for customs control (their copies), available information, results of applying technical means of customs control, and on the basis of the legal acts requirements regulating the procedure of customs control and/or customs clearance of goods and vehicles.
If the List of customs formalities includes customs formalities that require involvement of officials or structural units of the customs authority that are not currently present or are not located in the place of customs control, the customs official of the State Customs Service who is designated for customs formalities, reports about such customs formalities to the superior (or his deputy) of the customs clearance unit (hereinafter - CCU), or a person performing such duties, as well as takes measures to urgently inform (including by telephone, facsimile, e-mail, etc.) certain officials or the head of the relevant structural unit of the customs authority about such customs formalities.
An official or the head of a structural subdivision of the customs authority, in case of receiving the relevant information, shall immediately take measures to ensure the participation of officials in the conduct of customs formalities.
It is also possible to remotely involve customs officials (their structural units) in conducting certain customs formalities, including the use of video surveillance systems.
The customs formality may be removed from the List of customs formalities if:
1) fulfillment of the customs formality is impossible (depending on the type or characteristics of the goods, the availability of appropriate technical means, the possibility of presenting the goods for customs control, etc.);
2) the tasks according to the notification to the customs formality were achieved during the performance of another customs formality;
3) the customs formality and the relevant tasks in accordance with the notification to the customs formality relate to other (different from the declared) goods, vehicle or person;
4) the possibility of non-compliance of the customs formality is provided by the law (including international legal acts).
The list of reasons for removing customs formalities from the List of customs formalities is formed by the Classifier of results of customs formalities that can be obtained as a result of applying the risk management system, approved by the Order of the Ministry of Finance of Ukraine № 1011dated September 20, 2012.
The decision to remove customs formalities from the List of customs formalities is made by the Head (Deputy Head) of the CCU, or a person performing such duties, except when customs regulations specify other requirements.
In case of applying targeting (the risk analysis and assessment method according to which foreign trade transactions or movements across the customs border of Ukraine which have been previously analyzed with the use of information technology, including ARMS, are subject to additional risks assessment with the use information available to customs authorities (their structural units) for the risk management purpose) the decision to change the List of customs formalities or to cancel certain customs formalities may be made by the targeter or his immediate superior/his deputy (or a person performing such duties).
The official who made the decision, records it in the UAIS, including the ACCS, with the obligatory justification of the decision.
Upon completion of customs formalities from the List of customs formalities, information on the results of all customs formalities is entered using the ACCS or other UAIS information system into the database of the customs authority (except for customs formalities that can be completed after customs clearance).
The results of customs formalities that are added into the List of customs formalities by the customs authority official after acceptance of customs declaration for registration, shall be entered by such customs authority official or his immediate superior/or his deputy (or a person performing such duties).
It is envisaged to enter the following information on the results of customs formalities from the List of customs formalities:
1) the result of customs formality;
2) the date of actual completion of the customs formality or the date of the decision to cancel it;
3) surnames, initials of officials who have completed the customs formality, or the official who decided to cancel it;
4) additional information on the results of customs formalities, which the official considers appropriate to indicate (to describe the result in more detail, indicate problematic issues during the application of customs formalities, etc.) - is indicated if necessary. Entering additional information is mandatory if:
- a decision was made to cancel customs formalities (in this case it is necessary to indicate the relevant comprehensive justification);
- the results of customs formality revealed discrepancies/offenses (in such case it is necessary to indicate detailed information on the nature of the identified discrepancies/offenses);
5) details of the documents confirming the completion of customs formality - if such documents are drawn up as a result of customs formalities (inspection report, decision of the customs authority to determine the product code, etc.), except for those already listed in column 44 of the customs declaration, namely:
- title of the document;
- date and number of the document;
- additional information about the document, which the official person considers appropriate to indicate (specified title of the document, information about its publisher, etc.), is indicated if necessary.
It is obligatory to enter the results of all customs formalities from the List of customs formalities.
The following approach is used when entering information on the results of customs formalities:
1) in terms of the actual execution, it is taken into account that such information is entered about the current consignment of goods and the scope of customs control performed by this CCU is considered. Thus, if during the current customs clearance there is a customs formality present in the List of customs formalities and relevant tasks related to it, which this CCU has performed earlier (according to the customs declaration, the customs clearance of which was not completed due to revocation or refusal of customs clearance, etc.), such customs formality is considered to be completed, which is duly recorded in the ACCS or other UAIS information system. If during the current customs clearance there is a customs formality present in the List of customs formalities and relevant tasks related to it, which were previously performed by other CCU, including at the checkpoint on the state border of Ukraine, and this CCU does not take additional measures, such customs formality is considered incomplete and requires a decision on the cancelation of the customs formality, which is duly recorded in the ACCS or other UAIS information system;
2) in terms of identifying discrepancies/offenses, it is taken into account that such information is entered for the current consignment of goods and the current customs declaration.
The targeter may determine the need to inform the target center about the completion of customs formalities by ticking the appropriate mark in the ACCS or other UAIS information system.
In case of detection of incorrect operation (errors) of the ARMS, as a result of which the forms and scope of customs control cannot be determined automatically, the State Customs Service official performs non-automated control with the use of RMS by assessing risk according to the documentary risk profiles, guidelines, lists of risk indicators, methodological recommendations, including the results of analysis of the documents submitted for customs control (their copies), available information, the results of the use of technical means of customs control, as well as the requirements of legal acts governing customs control and/or customs clearance of goods and vehicles, and in case of identification of grounds for determining the forms and scope of customs control, forms the List of customs formalities independently.
6.5. Post audit activities (fulfillment by customs officials of the formalities determined by the results of the RMS)
In order to reduce the selectivity of ARMS risk profiles during customs control, automated assignment of business entities depending on their characteristics is carried out online.
Automated assignment of business entities is based on the results of verification of compliance with the established criteria using information technology, in particular ARMS, whereas the customs-related and other information obtained by customs authorities in the manner prescribed by law is being used.
For the business entities, depending on their correspondence to the certain criteria and their values, the coefficients of reduction of the ARMS determining of the need for customs inspection and/or additional verification of documents are applied.
Business entities are assessed for compliance with certain criteria automatically in each case at the time of customs control of goods/vehicles.
Provisions of the Procedure № 684 on electronic risk profiles and the ones regarding considerations and approvals at a meeting of the Expert Commission, cover the list of criteria that characterize the business entity and their meaning.
The list of criteria according to which the automated assignment of business entities is carried out is published by the State Customs Service on its website.
The results of the automated assignment of business entities do not exclude the possibility of random selection and/or targeting.
During the customs control of goods and vehicles, the State Customs Service officials ensure the implementation of the List of customs formalities formed on the basis of the implemented risk management measures for customs control and/or customs clearance provided for in Section VII of Procedure № 684.
The State Customs Service official performs customs formalities from the List of customs formalities, taking into account the notification to the customs formality, as well as in accordance with the requirements of regulations governing customs control and/or customs clearance of goods/vehicles, as well as guidelines in the relevant area of control, etc.
The customs formality from the List of customs formalities, which provides for additional verification of documents in a particular area of control, is carried out during the relevant control in this area in the manner prescribed by regulations of Ukraine on customs matters.
In case of discovering new information in the process of customs inspection (re-inspection) of goods and vehicles, which may be decisive during the control in certain areas (in particular, checking the correct classification of goods, correctness of determining the country of origin, compliance with declared non-tariff measures regulation, the presence of declared goods in the customs register of intellectual property rights, the correct application of tax benefits, the correctness of the customs value of goods), the State Customs Service official conducts re-control in this area based on such information.
If it is necessary to conduct a customs inspection (re-inspection) of goods and vehicles in excess of the List of customs formalities, the State Customs Service official adds the appropriate customs formality into the List of customs formalities.
In such case, the result of customs formalities with less control is recorded taking into account the implementation of customs formalities with more control.
Depending on the identified risks, the customs inspection (re-inspection) may be carried out on some or all of the goods moved in a particular foreign trade transaction.
Customs inspection (re-inspection) of all goods may even be carried out if only certain goods are indicated in the notification to the customs formality (for example, in case of detection of risks of declaring goods not by their titles).
When determining the scope of customs inspection (re-inspection) of goods, the official is guided by the notification to the relevant customs formality.
Officials of customs bodies (their structural subdivisions) during the RMS application are obliged to:
1) comply with the Constitution of Ukraine and act exclusively in accordance with the Customs Code of Ukraine and other laws of Ukraine, other regulations and requirements of the Procedure № 684;
2) comply with the information confidentiality requirements regarding risk analysis and assessment, development and implementation of risk management measures to determine the forms and scope of customs control (except cases provided by the laws of Ukraine);
3) ensure full and high-quality implementation of customs formalities determined by the results of the RMS application;
4) reliably enter information into the ACCS and/or other UAIS information system that directly or indirectly affects the results of risk analysis and assessment.
Officials of customs authorities (their structural subdivisions) during the RMS application are not allowed to:
1) edit documents, video, photo and other materials in order to distort information about the results of customs formalities;
2) without an authorization, interfere into the work of the ACCS with software tools, other than the ASMO, in order to distort or destroy the RMS results;
3) deliberately stop the ACCS services (information input-output, etc.), interfere with the operation of network equipment in order to ensure limited or complete absence of ARMS functionality.
If goods/commercial vehicles moved by the company across the customs border of Ukraine in more than 25% of such movements during a year were subject to customs control due to the application of risk management system, which delayed customs clearance for more than 4 working hours, and whereas the infringement of customs rules were not detected, this company has the right to know the reasons and grounds for the application of the relevant forms of customs control to these goods/vehicles.
6.6. Container control program (CCP)
The Container Control Program (CCP) of the United Nations Office on Drugs and Crime (UNODC) was established as a joint initiative of UNODC and the World Customs Organization (WMO) in 2004. Faced with such a complex and globalized problem, the CCP takes a nuanced, holistic and multi-sectoral approach, providing continuous monitoring and supervision, offering a variety of context-sensitive training programs and strengthening cooperation between public institutions and the private sector. The CCP's mission is to build capacity in Member States seeking to improve risk management, security of supply chain and trade facilitation at seaports, airports and land border crossings to prevent the movement of illegal goods across the borders.
The CCP currently operates in more than 70 Member States. Since the establishment of the CCP in 2004, more than 120 of Port Control Units (PCU) and Air Cargo Control Units (ACCU) have been established. These interagency units are equipped with the ContainerComm, a secure communication application developed by WMO and designed to share information with their counterparts in other countries. This gives the PCU and ACCU access to a large amount of information, allowing users to share information about high-risk containers and verify their identification numbers.
These efforts have led to the seizure of a wide range of illicit goods, such as weapons and ammunition, revenues from fisheries, forests, wildlife and other environmental crimes, illicit drugs, strategic goods, counterfeit or unlicensed medications, precursors for drug and explosives, cigarettes, alcohol , stolen vehicles and goods that are counterfeit or otherwise violate intellectual property law. The CCP remains an ideal place to support strengthening the security of the international supply chain by building the capacity of national border administrations to withstand threats from sea, land and air cargo.
The first unit within the framework of the Global Container Control Program in Ukraine was established on January 16, 2018 in the port of Odessa. The Port Control Unit, consisting of 5 employees from the Odessa Customs of the State Fiscal Service and the Southern Regional Department of the State Border Guard Service, works to prevent the illegal movement of contraband drugs, weapons, counterfeit goods, dual-use goods, flora and fauna using sea containers and other criminal activity. The second group was created in the area of activity of Kyiv Customs at Boryspil Airport. This is not about additional control. The group is provided with all necessary technical means of control, in particular, a mobile laboratory for rapid analysis of chemical and physical characteristics, survey tools, has access to national and international databases, which allows analytical work to select containers at potential risk i.e. the ones which may contain narcotic drugs, dual-use items.
These units analyze preliminary information provided by maritime and aviation agents based on national and international databases (CTS-International Risk System, WCO IPM and PICS - data exchange on counterfeit products and precursor circulation). After that, the selection of risky movements of goods in containers, generalization and analysis of available information are held.
On the basis of the received information, the decision on additional forms of customs control is made. This can be either an additional check of documents, or scanning, weighing, customs inspection, the use of canine teams.
Section 7. Interaction of the Customs Service with the authorities, agencies and stakeholders
According to the Regulation on the State Customs Service of Ukraine, the SCS implements the state customs policy, the state policy in the field of combating offenses by applying customs legal framework. According to the Customs Code of Ukraine (CCU), the purpose of customs authorities is to create favorable conditions for the development of foreign economic activity, ensure public safety, protect the customs interests of Ukraine, prevent and counter smuggling, fight against violations of customs rules throughout the customs territory of Ukraine. For this purpose, among other things, the customs authorities interact with the authorities of Ukraine, law enforcement agencies, foreign trade entities, carriers and natural persons, maintain customs statistics and exchange data with the customs authorities of other countries, exchange documents and information with other state authorities of Ukraine, customs, law enforcement and other bodies of foreign countries.
Taking into account the objectives of this Handbook, this section will cover the general aspects of the interaction of customs with law enforcement agencies and participants of foreign economic operations - applicants or customs representatives, carriers, authorized economic operators.
7.1. Inter-Agency Cooperation
Cooperation of the Customs Service with law enforcement agencies to fight against violations of customs rules.
According to the Regulation on the State Customs Service, in order to fulfill the tasks assigned to it, the SCS has, among other things, the right:
- to take special measures, in particular, in cooperation with foreign bodies and state bodies of Ukraine, which have the right to conduct operative and investigative activities;
- participate in inspections and other measures carried out by state bodies;
- to the scope limited by the law, to involve experts, specialists of central and local executive bodies, enterprises, institutions and organizations (if agreed by their managers), scientists, representatives of civil society institutions (by mutual consent) into consideration of issues that belong to the competence of the SCS.
The law enforcement agencies with which the customs authorities actively interact in the process of fulfilling the tasks assigned to them by the law include: the National Police, the Security Service of Ukraine, the Prosecutor's Office, and the Border Guard. The main powers of law enforcement agencies are systematized and defined in Chapter 77 of the Customs Code of Ukraine (CCU).
One of the most common violations of customs rules is the illegal movement of goods (secretly or in violation of rules and procedures, or the movement of goods whose movement is prohibited or restricted), or smuggling. As part of the fight against smuggling, including of narcotic drugs, psychotropic substances and precursors, controlled deliveries of said drugs, substances and precursors, as well as the movement of goods under covert control and operational supervision of law enforcement agencies, can be carried out by customs authorities together with state bodies that have the right to carry out operational and investigative activities.
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Regarding measures toprevent and combat smuggling, see Chapter 66 of the CCU.
The interaction of customs authorities with law enforcement agencies is determined by Art. 558 of the CCU. Among other things, it states that:
- customs bodies, when performing their tasks, interact, including by exchanging information, with law enforcement agencies;
- if during customs control or other measures carried out by the customs authorities, the signs of offenses are detected, the investigation of which does not belong to the powers of the customs authorities, the customs authorities are obliged to notify the relevant law enforcement authorities in writing;
- law enforcement agencies are obliged to notify the customs authorities in writing about violations of customs rules or contraband detected by them;
- law enforcement agencies are obliged to notify the customs authorities in writing about the availability of operational information regarding possible cases of movement of goods, including vehicles for personal use, commercial vehicles in violation of Ukrainian legislation;
- the customs authorities are obliged to provide the State Border Service of Ukraine with instructions to inform the customs authorities about the intention of crossing the state border of Ukraine by persons in respect of whom the customs authorities have detected a violation of customs rules, if the persons who are brought to administrative responsibility for the violation of customs rules were not present when drawing up a protocol on violation of customs rules;
- the customs authorities are obliged to provide the State Border Service of Ukraine and the authorities of the National Police with the information about vehicles and persons in respect of whom the customs authorities have detected a violation of the terms of temporary importation of vehicles and/or the terms of movement of vehicles in the customs transit regime, if the persons who are hold liable to administrative responsibility for violation of customs rules, were not present when the protocol on violation of customs rules was drawn up.
Another important aspect of interaction in the context of customs control is the coordination in the field of canine support (border and customs control), as for the use of information technologies and operation of common infrastructure, and coordination at the level of using the software on the single platform.
As part of the use of the single platform, the state created the "Single Window" system, which, among other things, increases the level of control over the movement of goods subject to export control through the customs territory of Ukraine, by placing licenses and permits/conclusions for export (import) of goods into the system in the form of an electronic document certified by an electronic digital signature. In its turn, the Central executive authority (CEA) in the field of customs affairs on a monthly basis submits information on the scope of export (import) of goods under the issued licenses, permits/conclusions to the CEA, which ensures the formation and implementation of state policy in the field of economic development (Ministry of Economy of Ukraine).
The representative(s) of the customs service are also included into the composition of the Interdepartmental Commission on International Trade, which, among other things, carries out state regulation of foreign economic activity, including by changing the conditions of movement of goods across the customs border in order to combat violations of customs rules.
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About the Interdepartmental Commissionon International Trade, see Article 5 of the Law of Ukraine "On the Protection of NationalProduct Producers from Dumping Imports" No.330-XIV of 22.12.1998.
According to the second part of Article 5 of the Law of Ukraine "On the Protection of National Product Producers from Dumping Imports" No. 330-XIV dated 22.12.1998, the list of the personnel of the Interdepartmental Commission on International Trade is approved by the Cabinet of Ministers of Ukraine upon its submission by the Chairman of this Commission.
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For the current composition of theInterdepartmental Commission on International Trade, see Resolutionof the Cabinet of Ministers of Ukraine "On Approval of the Compositionof the Interdepartmental Commission on International Trade" No.310 dated18.04.2012.
International cooperation is another aspect of the fight against violation of customs rules. An example of such cooperation is the European Union Border Assistance Mission to Moldova and Ukraine (EUBAM), which began its work in 2005. Within its framework, a Pre-arrival information exchange system (PAIES) was introduced, which allows the customs services of Moldova and Ukraine to exchange electronic information on the import and export of goods that cross the common border. Due to PAIES, the customs services of both countries can better control goods crossing the common border, including on the Transnistrian segment. This system made it possible to reduce violations of customs rules.
Cooperation of the Customs Service with state authorities in the process of decision-making regarding the issuance of permits and export control.
In accordance with the Law of Ukraine "On State Control of International Transfers of Military Purpose and Dual-Use Goods" No.549-IV dated 20.02.2003, the National Security and Defense Council of Ukraine (NSDC of Ukraine) coordinates activities and exercises control over the actions of executive authorities in the field of state export control. Implementation of the state policy in the field of export control is ensured by the CEA, which implements the state policy in the field of state export control (such CEA is the State Export Control Service of Ukraine, hereinafter - SSECU), as well as ministries, other CEAs, intelligence agencies of Ukraine authorized by law to implement measures in the field of state export control. The SSECU receives from other executive bodies the information necessary to exercise its powers in the field of state export control.
The superior state body in terms of decision-making regarding the granting of permits for international transfers of military and dual use goods is the Interdepartmental Commission on the Policy of Military and Technical Cooperation and Export Control under the NSDC of Ukraine.
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About the Interdepartmental Commission on the Policy of Military and Technical Cooperation and Export Control at the NSDC of Ukraine, see the Regulation on the Interdepartmental Commission on the Policy of Military and Technical Cooperation and Export Control, approved by the Decree of the President of Ukraine No.180/2007dated March 5, 2007.
In accordance with paragraph 6 of the Regulation on the Interdepartmental Commission on the Policy of Military and Technical Cooperation and Export Control, approved by the Decree of the President of Ukraine No.180/2007 of March 5, 2007, the members of this Commission are representatives of the Committee of the Verkhovna Rada of Ukraine on National Security, Defense and Intelligence, a representative of the Office of the President of Ukraine, as well as the First Deputy or Deputy of the Minister of Economy of Ukraine, the Minister of Defense of Ukraine, the Chairman of the State Export Control Service, the First Deputy or Deputy Chairman of the State Customs Service of Ukraine, the Head of the State Space Agency of Ukraine, the Chairman of the Security Service of Ukraine, the Chairman of the Foreign Intelligence Service of Ukraine , the Head of the Chief Directorate of Intelligence of the Ministry of Defense of Ukraine, as well as the Director General of the State Concern "Ukroboronprom".
Thus, the State Customs Service of Ukraine is involved in the decision-making procedure regarding the granting of permits for international transfers of military and dual use goods at the highest level, which is legally enacted in the above-mentioned national legal acts.
Inter alia, the task of this Commission is to prepare proposals regarding:
- improvement of coordination and implementation of control over activities of executive authorities in the field of state export control;
- drafts of normative legal acts, concepts, state programs, international treaties of Ukraine on the issues of military-technical cooperation and export control;
- solving problematic issues of military-technical cooperation and export control.
The Commission, among other things:
- analyzes the effectiveness of state regulation of activities in the field of military and technical cooperation and export control and develops proposals for its improvement;
- in accordance with the established procedure elaborates proposals regarding the granting of powers to subjects of foreign economic activity of Ukraine for the right to export/ import military and dual-use goods;
- monitors compliance of Ukraine's international obligations and agreements on military and technical cooperation and export control by executive authorities and subjects of international transfers of military and dual use goods;
- participates in the preparation and examination of draft legal acts on the implementation of state policy in the field of military and technical cooperation and export control, as well as in the coordination of the relevant draft acts of the President of Ukraine;
- according to the established procedure is involved into the consideration of issues regarding the provision of permissions to conduct negotiations related to the conclusion of foreign economic agreements (contracts) for the implementation of international transfers of military and dual use goods, permits for the implementation of international transfers of such goods.
Interaction of the Customs Service of Ukraine with the SSECU should be separately noted as another aspect of cooperation of the Customs Service with the state bodies of Ukraine in terms of decision-making on granting permits in the field of export control.
Thus, the Instruction on the procedure for issuing and using permit documents in the field of state export control was approved by the Order of the SSECU No.355 dated November 29, 2004. According to it:
- the State Customs Service of Ukraine shall receive a complete description of the elements of protection of permit documents against forgery (prior to their implementation), as well as samples of signatures of relevant officials of the State Export Control Service and impressions of seals;
- the State Export Control Service shall promptly inform the State Customs Service of Ukraine about the cancellation or suspension of the granted permit or conclusion according to the law;
- the State Customs Service of Ukraine shall promptly inform the State Export Control Service in writing of the detention by the customs authorities of goods moving across the customs border of Ukraine on the basis of a permit or conclusion of the State Export Control Service, for reasons related to export control, indicating the reasons for the detention. The decision on the further use of such a permit or conclusion is made by the State Export Control Service;
- in case of partial (not full) use of the permit document, the necessity of making changes to it, including extending its validity period, is considered by the State Export Control Service after the applicant provides a copy of this document together with information about the state of its actual use, certified by the signature of the head or deputy head of the customs body and the original seal of this body.
Thus, the State Customs Service has a wide range of interdepartmental cooperation in the field of export control, in particular it participates both in the decision-making process on the granting of permit documents at the highest level of state decision-making, and in the technical process of issuing permits/conclusions for the movement of goods subject to export control.
7.2. Relationship of the customs authority with the stakeholders
According to clause 1 of Article 562 of the CCU, customs authorities establish and maintain official relations of a consultative nature with business entities. The main part of these relations is the customs formalities for crossing the border by the goods of legal entities. These procedures, in addition to the legal entity, in almost all cases include the declarant or authorized person (customs broker), as well as the carrier.
According to the definitions of the Customs Code of Ukraine:
- declarant is a person who independently makes the declaration or on whose behalf the declaration is made;
- a customs broker is an enterprise that provides services on the declaration of goods, vehicles for commercial purposes that move across the customs border of Ukraine.
At the same time, the customs broker is represented at the customs office by a customs agent - a natural person - a resident who is in labor relations with the customs broker and directly performs actions related to the presentation of goods and vehicles of commercial purpose as well as documents required for their customs control and customs clearance to the customs authority in the interests of the person represented by the customs broker.
Thus, a legal entity has the goods declared by its employees, or entrusts this operation to a third party. It should be noted that the only significant difference in the interaction between customs and the declarant and customs and the broker is that the brokerage activity is controlled by the customs authorities and it is necessary to obtain an appropriate permit for its implementation. Also, when carrying out customs clearance by a broker, the latter must documentally confirm his right to carry out customs formalities on behalf of a legal entity. In other aspects, the interaction between the customs broker and the declarant (essentially a legal entity) does not differ.
According to the CCU, the following occurs within the framework of the relationship between customs and the declarant/broker:
- informing interested parties about customs regulations, in particular with the use of information technologies;
- consulting on customs issues;
- provision of certificates by the customs authorities at the request of interested persons;
- provision by the customs of preliminary decisions on the application of certain legal provisions of Ukraine on customs matters;
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Such decisions are made before the beginning of the movement of goods across the customs border of Ukraine and are mandatory for implementation by any customs authority.
For more detailed information on preliminary decisions, see Article 23 of the CCU.
- obtaining of customs permits for operations with goods in "transit" mode (overloading from one vehicle to another, grouping of packaging units, change of packaging, marking, sorting, repair/change of damaged packaging);
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For more detailed information on the seoperations, see Article 96 of the CCU.
- obtaining of customs permit to transfer goods into the mode of destruction, as well as to refuse in favor of the state;
- placement of goods in customs warehouses;
- obtaining of customs permits for operations in the customs territory of Ukraine and outside of it, including determination of processing terms and their extension in accordance with the CCU;
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For more detailed information on the seoperations, see Articles 23, 24 of the CCU.
- obtaining of customs permits for the temporary import and export of goods with the determination of the term of such import/export and the extension of this term in accordance with the CCU;
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For more detailed information on the seoperations, see Article 18,19 of the CCU.
- issuance by customs of movement (origin) certificates for Eur.1 goods;
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The procedure for filling out and issuing of the movement (origin) certificate for EUR 1 or EUR-MED goods by customs is approved by the Order of the Ministry of Finance of Ukraine No.139dated March 2, 2021.
- issuance by customs of delivery confirmation certificates;
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The form of certificates and the procedure for their issuance is determined by the Decreeof the Cabinet of Ministers of Ukraine No.920 dated 27.05.1999.
- obtaining of customs permits for conducting customs brokering activities, opening and operating customs warehouses, temporary storage warehouses, duty-free shops, cargo customs complexes, commercial or service-type free customs zones.
In terms of the interaction between customs and carriers, it should be noted that the Customs Code of Ukraine of 2002 provided for the concept "customs carrier" (an enterprise that carried out the transportation of goods subject to customs control between the customs authorities, without applying at the same time measures to guarantee the delivery of goods to the customs authority of destination). The status of a customs carrier was granted only to resident enterprises and required obtaining a corresponding license from the customs authorities of Ukraine. The Customs Code of Ukraine of the 2012 edition does not provide for the concept "customs carrier". To date, the issuance of a certificate of admission for a road vehicle to the transportation of goods under customs stamps and seals is provided for vehicles which owners carry out road transportation under the terms of the Customs Convention on the International Transport of Goods using the TIR Carnet of 1975 (TIR Convention).
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The Procedure for issuing a certificate on the admission of a road vehicle to the transportation of goods under customs stamps and seals was approved by the Order of the Ministry of Finance of Ukraine No.1064dated 09.10.2012.
Other aspects of the interaction between customs authorities and carriers include:
- control by the customs of the terms of delivery by the carrier of goods that are under the customs control;
- obtaining of permits from customs authorities for loading and unloading of goods transported by cabotage;
- the change of cargo vehicles or drivers operating them;
- unloading of goods at the warehouse of the customs authorities (subject to their permission), if the goods delivered by the carrier, which are under customs control, have not been declared by the responsible person to any customs regime within three days;
- cooperation in the fulfillment of customs formalities in the event of an accident or force majeure.
According to the CCU, a resident enterprise that performs any role in the international supply chain of goods (manufacturer, exporter, importer, customs representative, carrier, forwarder, warehouse keeper) can obtain the status of an authorized economic operator (AEO). There are 2 types of AEO:
1) AEO-C – AEO that has the right to apply special simplifications;
2) AEO-B – AEO that confirmed safety and reliability.
The enterprise has the right to obtain both types of authorization at the same time.
The decision to grant, refuse to grant, suspend (renew) or cancel the AEO authorization is issued by an order of the CEA which maintains the Unified State Register of Authorized Economic Operators and ensures its publication on its official website.
An enterprise that has received AEO authorization has the right to apply special simplifications and use the benefits. The procedure and conditions of their application are determined by the CCU.
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The list of special simplifications and advantages is provided in Article 13 of the CCU.
As part of its activities, the AEO upon written request and in accordance with the procedure defined by Article 131 of the CCU, obtains permits for the application of special simplifications from the customs authority and is obliged to immediately inform the customs office, which has granted permission for the application of the corresponding special simplification, about all events and circumstances that may have an effect on the AEO's compliance with the conditions specified by such a permit.
After granting an AEO authorization to an enterprise, the customs authorities carry out a set of measures that ensure systematic control of the enterprise's compliance with the AEO criteria (compliance monitoring).
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The procedure for the compliance monitoring is determined by Article 16 of the CCU.
Section 8. Liability for violation of customs rules and procedures
The problem of violations and combating the illegal movement of goods is one of the priority tasks of any state, since illegal actions can affect the expansion of the shadow sector of the economy, harm both the economic and security sectors of the state.
The issue of customs offenses, finding of effective mechanisms for combating them is regulated by the relevant normative legal acts of Ukraine, which contain procedures for the application of procedural actions aimed at bringing offenders to justice.
According to the Regulation on the State Customs Service of Ukraine, its main tasks include ensuring the implementation of state policy in the field of combating offenses during the application of legislation on state customs matters, preventing and countering smuggling, and combating violations of customs rules.
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You can familiarize yourself with the Regulation on the State Customs Service of Ukraine by following the link https://customs.gov.ua/polozhennia
It is worth noting that violations of customs rules belong to the category of administrative offenses. Thus, the Customs Code of Ukraine (hereinafter - the Code), in particular, Art. 458 defines that "violation of customs rules is an administrative offense, which constitutes illegal, culpable (intentional or negligent) actions or inactions that encroach the established by the Customs Code of Ukraine and other legal acts of Ukraine procedure of movement of goods, commercial vehicles through the customs border of Ukraine, presenting them to the customs authorities for customs control and customs clearance, as well as carrying out operations with goods that are under customs control or the control of which is entrusted to the customs authorities, and for which the Customs Code of Ukraine provides administrative responsibility."
However, administrative responsibility for the offenses provided by the Code takes place unless these offenses entail criminal liability.
Article 459 of the Code stipulates that citizens who have reached the age of 16 at the time of committing such an offense may be held administratively liable for violating customs rules, and in case of violating customs rules by enterprises - officials of these enterprises. In addition, foreigners and stateless persons staying on the territory of Ukraine are also subject to prosecution for violation of customs rules.
The legislation establishes that an act committed in a state of extreme necessity, i.e. with the aim of eliminating a danger that threatens the state or public order, property, rights and freedoms of citizens, does not fall under the violation of customs rules.
At the same time, an offense does not occur if the cargo is not delivered to the customs office of destination due to an accident or force majeure. In such circumstances, the carrier is obliged to take all possible measures to preserve the goods and prevent any use of them, notify the nearest customs authority and have documentary confirmation.
Norms establishing responsibility for violation of customs rules are contained in Chapter XVIII of the Code "Violations of customs rules and liability for them". Chapter XIX "Proceedings in cases on violation of customs rules" covers liability of persons involved in cases on violation of customs rules.
Based on the above, the Code applies three types of administrative sanctions - warning, fine and confiscation of goods (commercial vehicles). A warning and a fine can be applied only as the main administrative penalty, confiscation – both as the main and as an additional administrative penalty. However, for one and the same violation of customs rules, only the main or the main and additional administrative penalty can be imposed.
A warning (Article 463 of the Code) is an official appeal to the offender with the aim of preventing him from committing similar acts in the future. A warning contains legal consequences, i.e. in the case of repeated committing of a similar offense during the year for which a person was subject to a penalty in the form of a warning, the imposition of such a penalty is considered a circumstance that aggravates responsibility.
However, the Code applies warnings to a relatively small number of violations, namely the sanctions of Article 468 "Violation of the regime of the customs control zone", part 1 of Art. 469 "Illegal transactions with goods, means of transport, the customs clearance of which has not been completed, or with goods temporarily stored under customs control", part 1 of Art. 470 "Non-delivery of goods, commercial vehicles and documents to the customs authority of destination, their issuance without the permission of the customs authority or loss", part 1 of Article 481 "Exceeding the term of temporary import or temporary export of goods".
A fine (Article 464 of the Code) as a type of administrative penalty consists in imposing on a person the obligation to pay money in the amount determined by the classification and nature of the offense committed.
The procedure for calculating fines in the Code is established in the amount divisible by non-taxable minimum incomes (the non-taxable minimum incomes of citizens is determined by Ukrainian laws, hereinafter - NTMI) and in percentage equivalent.
Confiscation of goods (Article 465 of the Code) as an administrative penalty involves the forced seizure of goods, vehicles and their free transfer into state ownership.
In addition, part 1 of Art. 511 of the Customs Code of Ukraine establishes that goods that are direct objects of violation of customs rules and the relevant documents that are required as evidence in the case of violation of customs rules may be temporarily seized. Documents that are in electronic form are confiscated along with the corresponding media.
Part 2 of the same article specifies the obligation to temporarily seize goods, commercial vehicles, as well as relevant documentary materials. Such measures are applied in case of detection of the following violations:
- in case of exceeding the delivery term of vehicles for personal use and commercial vehicles by more than 30 days, as well as the loss of these vehicles, including their disassembly (part 6 of Article 470 of the Code);
- in case of non-declaration of goods (except for currency values) that are subject to prohibitions and/or restrictions established by law regarding their import/export into/outside the customs territory of Ukraine and which are moved by citizens (part 3 of Article 471 of the Code);
- in case of non-declaration of goods, commercial vehicles (Article 472 of the Code);
- when forwarding through the customs border of Ukraine in international postal and express shipments of goods prohibited for such forwarding (Article 473 of the Code);
- when moving goods across the customs border of Ukraine in violation of intellectual property rights (Article 476 of the Code);
- in case of exceeding the term of temporary importation of vehicles for personal use and vehicles of commercial purpose into the customs territory of Ukraine by more than 30 days, as well as the loss of these vehicles, including their dismantling (part 6 of Article 481 of the Code);
- during movement or actions aimed at movement of goods, vehicles of commercial purpose across the customs border of Ukraine outside customs control (Article 482 of the Code);
- during movement or actions aimed at movement of goods across the customs border of Ukraine with concealment from customs control (Article 483 of the Code);
- when storing, transporting or purchasing goods, commercial vehicles imported into the customs territory of Ukraine outside of customs control or with concealment from customs control (Article 484 of the Code).
Part 3 of Article 511 of the Code defines that if a customs offense is committed by a person who does not have permanent residence or address in Ukraine, goods and means of transport shall be seized in a quantity sufficient for recovering a fine or cost of goods and means of transport.
Seized goods, means of transport and documents shall be listed in a report compiled in cases stipulated by this Code or in a description attached thereto specifying the exact quantity, measure, weight and special features of such goods, means of transport and documents, as well as the cost of goods and means of transport (part 4 of Article 511 of the Code).
It is worth noting that the Code also provides that the temporary seizure of goods, vehicles and documents can be appealed. The appeal procedure is defined in Chapter 4 of the Code (Appeals against decisions, acts or omissions by the revenue and duties authorities, officials and other employees, and their accountability) and other laws of Ukraine.
The table below shows the types of offenses and sanctions (norms of responsibility) for their commission.
Table 1
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Offense
Responsibility
468
Violation of the procedure of customs control area
Economic activities carried out in the customs control area, movement of goods and means of transport across and within the customs control area, crossing of the customs control area by citizens who do not cross the customs border of Ukraine and officials of the public authorities that are not engaged in controls and their movement within that area in violation of the procedure laid down in Article 332 of the Code.
A warning or a fine amounting to 20 NTMI.
469
Unlawful handling of goods withpending customs clearance or goods placed for temporary warehousing undercustoms supervision, or of personal transport vehicles temporarily importedinto the customs territory of Ukraine or placed under the customs regime oftransit.
Dependingon the classification of offense mentioned in part 1-4 of this of the Code.
A warning or a fine amounting from 20 to 2000 NTMI.
470
Non-delivery of goods, means of personal transport, commercial vehicles and documents to the customs authority of destination, their release without the authorization of the customs authority or loss.
Sanctions are established depending on the classification of the violation set out in Parts 1-6 of this Article of the Code, in particular, exceeding the terms of delivery of goods, their loss, disassembly, repeated violations of the term of delivery of goods imposed by Article 95 of the CCU, including vehicles for personal use, vehicles of commercial purpose, which are under customs control, to the customs office of destination.
A warning or a fine amounting from 10 to 10000 NTMI or seizure of vehicles
471
Violation of the customs control rules in the simplified customs control zones (green channels)
A fine amounting to 100 NTMI, and if direct objects of the offenses are goods whose movement across the customs border of Ukraine is prohibited or restricted by the legislation of Ukraine, it shall also entail a confiscation of goods.
472
Failure to declare goods, means of transport for commercial use.
A fine amounting to 100 per cent of the cost of such goods, means of transport with their confiscation.
473
Sending of goods prohibited for sending by international mail and express mail across the customs border of Ukraine
Confiscation of goods.
474
Impeding the customs officials toaccess goods, means of transport, documents
Afine amounting to 100 NTMI, repeated offence during one year – a fine of 500NTMI
475
Failure to report on goods placedunder customs supervision to the customs authority
Afine amounting to 50 NTMI
476
Movement of goods across thecustoms border of Ukraine with infringement of intellectual property rights
Afine amounting to 1000 NTMI with confiscation of goods moved withinfringement of intellectual property rights.
477
Violation of legally establishedrules for importation / exportation of goods into / from the territory offree customs zone and/or legally established rules for handling of goodsplaced under the procedure of free customs zone
Afine amounting to 1000 NTMI
478
Violation of the procedure forstorage of goods in customs warehouses and their handling
Commissionof offenses stipulated by part 2 of Article 127 of the Code (preparation ofgoods for sale and transport, i.e. consolidation and fragmentation ofconsignments, formation of consignments, sorting, packing, re-packing,marking, loading, unloading, reloading, sampling and other similaractivities).
Commissionof offenses stipulated by part 5 of Article 129 of the Code (the goods drawnup under the customs shall be brought out of the customs territory of Ukraineor placed under another customs procedure allowed in respect of such goodswithin the established period) and part 2 of Article 429 (Within 30 days uponrevocation of a permit to open and operate a customs warehouse, the goodsstored in such warehouse shall be moved under customs supervision by theirholder or person authorized by them, or the customs ware housekeeper toanother customs warehouse, warehouse of the customs authorities or placedunder another customs procedure).
Afine amounting to 20 NTMI;
Afine amounting to 500 NTMI and a fine amounting to 1000 NTMI for the releaseof goods placed under the procedure of customs warehousing in customswarehouses without the authorization of the customs authorities or loss ofsuch goods.
479
Violation of the procedure orperiod for disposal of goods placed in a duty-free shop
Afine amounting to 1000 NTMI
480
Violation of the procedure forprocessing of goods
Afine amounting to 1000 NTMI
481
Exceeding the periodfor temporary import or
temporary export ofgoods including vehicles for personal use, vehicles for commercial purposesor the period of temporary removal of goods or loss of vehicles
exceedingthe terms specified in Part 1 (by more than 3 days)
repeatedcommission of the offense specified in Part 2 (within a year and for a periodof more than 3 days, but not more than 10 days)
exceedingthe terms specified in Part 3 (by more than 10 days, but not more than 20days)
exceedingthe terms specified in Part 4 (by more than 20 days)
exceedingthe terms specified in Part 5 (by more than 20 days, but not more than 30days)
exceedingthe terms specified in Part 6 (by more than 30 days, as well as loss of thesevehicles, including their disassembly)
Awarning or a fine amounting to 50 NTMI;
Afine amounting to 300 NTMI;
Afine amounting to 1000 NTMI;
Afine amounting to 2000 NTMI;
Afine amounting to 5000 NTMI;
Afine amounting to NTMI or confiscation of such vehicles
482
Movement or actions aimed at themovement of goods, means of transport for commercial use across the customsborder of Ukraine beyond customs supervision
Offenses set out in Part 1 (actionsoutside the location of the customs authority or outside working hours fixedtherefor, and without completing customs formalities or with illegal relieffrom customs supervision due to the abuse of office by the customs officials)
Offenses set out in Part 2 (the abovementioned offense committed by a person that was held liable during a year for an offense set out in Article 483)
A fine amounting to 100
per cent of the cost of goods, means of transport, which are direct objects of customs offenses, with confiscation of such goods, means of transport and those used for carriage of goods.
A fine amounting to 200 per cent of the cost of goods, means of transpo rt,which are direct objects of customs offenses, with confiscation of such goods, means of transport and those used for carriage of goods.
483
Movement or actions aimed at the movement of goods across the customs border of Ukraine concealed from customs supervision
Offensesset out in Part 1 (using specific-purpose storage (hide) and other means orways that hinder detection of such goods or by giving them the appearance ofother goods, or providing the customs authorities as a ground for movinggoods with forged documents or illegally obtained documents, or thosecontaining false information regarding the name of the goods, their weight,quantity of cargo items, their marking and numbers, false particulars neededto identify the code of goods code under the UCGFEA and their customsvalue.
Incase the above mentioned offense committed by a person that was held liableduring a year for an offense set out in Article 482
A fine amounting to 100 per cent of the cost of goods, which are direct objectsof customs offenses, with confiscation of such goods, as well as goods andmeans of transport with specific-purpose storage (hide) used for carriage ofgoods, which are direct objects of customs offenses, across the customsborder Ukraine.
Afine amounting to 200 per cent of the cost of goods, which are direct objectsof customs offenses, with confiscation of such goods, as well as goods and means of transport with specific-purpose storage (hide) used for carriage of goods, which are direct objects of customs offenses, across the customs border Ukraine.
484
Storage, carriage or purchase of goods, means of transport for commercial use imported into the customs territory of Ukraine beyond or concealed from customs supervision
A fine amounting to 100 per cent of the cost of those goods, means of transport or their confiscation.
485
Actions aimed at illegal exemption from customs
duties or reduction in their amount, as well as other illegal actions aimed at the evasion of customs duties
A fine amounting to 300 per cent of the unpaid amount of customs duties.
Proceedings in cases of violation of customs rules are carried out in accordance with the Customs Code, and in the part not regulated by it - by the legislation of Ukraine on administrative offenses.
Four stages of customs offense proceedings may be singled out:
> institution of a legal case for customs offense and a customs investigation;
> consideration of the case on the merits and rendering a ruling;
> a review of the case due to the challenging of the ruling in the case (if it occurs);
> enforcement of the ruling in the case.
At the first stage, legal proceedings occur, which are intended to obtain evidence that is necessary to render a correct decision in the case. The legal proceedings include the following:
- preparing a protocol on the violation of customs regulations;
- interviews with the persons who are brought to administrative liability for customs offenses, with the witnesses and other persons;
- requesting the documents that are required for the legal proceedings and in the customs offense case;
- expropriating the goods, vehicles and documents;
- performing a customs inspection;
- submitting the goods, vehicles and documents for recognition and commission an expert investigation;
- commissioning of expert evidence.
In accordance with Article 488 of the Code, the customs offense case shall be considered instituted from the moment of preparing the protocol on the violation of customs regulations.
A customs offense report may be drawn up by the officials defined in Article 490 of the Code, namely:
- officials who are authorized by their job descriptions to perform customs supervision, customs clearance and release of goods, means of transport for commercial use across the customs border of Ukraine and directly found a customs offense;
- customs officials who are entitled by their job descriptions to do so;
- other officials authorized by the head of the Customs Service or head of customs office.
The Code defines the grounds for initiation of a customs offense case:
- direct detection of customs offense by the revenue and duties officials;
- official written notification of customs offense received from other agencies and authorities (including customs);
- official written notification of customs offense received from foreign customs and law enforcement agencies as well as from international organizations.
The authorized official who identified a case of the customs offense shall prepare a protocol on each such case. The protocol shall be drawn up in the state language in two copies, one copy to be served against receipt upon the person who is brought to liability.
In this case, it shall be obligatory to explain the rights provided by Article 498 of the Code (Rights and Obligations of the Persons Brought to Administrative Liability for Customs Offense and of the Stakeholders) to the person who is brought to liability and the possibility shall be notified to them of terminating the proceedings brought as a result of the customs offense by way of a compromise.
The protocol as well as the confiscated goods, vehicles and the documents specified in the protocol shall be handed over to the customs authority within whose territory the customs offense was identified.
Evidence in a customs offense case shall constitute any actual data used to find out, in the legally established manner, whether: there is a customs offense, a person is guilty of committing it, and there are other circumstances that matter for proper resolution of the case. Such data shall be found out through:
- customs offense report, records of proceedings, appendices thereto;
- explanations given by the witnesses;
- explanations given by the person held liable;
- expert opinion;
- other documents defined by the Code.
The customs offense proceedings is held by the official person who evaluate the evidence at his own discretion based on comprehensive, complete and objective examination of all the facts and circumstances of the case in their entirety.
Customs offense proceedings shall engage the following:
- persons brought to administrative liability for customs offense;
- representatives of the persons brought to administrative liability for customs offense and stakeholders (legal representatives, representatives acting under the power of attorney, mandate);
- defenders, experts, witnesses, interpreters/translators and attesting witnesses.
Persons brought to administrative liability for customs offense and stakeholders are listed in Article 499 of the Code.
An administrative arrest may also apply to the violators of customs regulations.
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The administrative arrest is one of the administrative enforcement measures that is applied against the will and wish of the violator, meaning a temporary restriction on the freedom of movement and an obligatory stay in a particular location area.
This procedure is used to stop the violation of customs regulations, to establish the identity of the person who committed such acts as well as to draw up a protocol, if it should prove impossible to draw up such a protocol at the place of committing the violation.
The term of administrative arrest is calculated from the moment the person is delivered to the official premises of the customs authority or to other premises where it is possible to perform the required actions.
The customs authority that effected the temporary detention of the person shall promptly notify the fact to the relatives of the detained person. If the detained person is a non-resident and does not have relatives in the territory of Ukraine, the diplomatic representative office or the consular institution of the relevant foreign state shall be notified.
If the acts of the person who committed the customs offense do not have the characteristics of a criminal offense, the legal proceedings against the violator of customs regulations may be stopped by way of a compromise. The compromise shall be the entry into an amicable agreement between the said person and the customs authority.
The agreement shall be considered invalid and the legal proceedings in the customs offense case shall be resumed, if the person who committed the violation of customs regulations did not perform the specified acts within the term provided in the amicable agreement (the term not to exceed 30 days). An amicable agreement in the case for violation of customs regulations shall not be challenged.
Where proceedings in a case for violation of customs regulations are discontinued by way of a compromise, the person who committed this violation shall be considered as not having been subject to administrative liability in this case.
The Code provides a clear delineation of responsibilities applicable to customs offense cases, meaning that there are Articles to be considered by customs authorities and those to be considered by district, district in the city, city or city district courts (judges). All cases for violation of customs regulations committed by the persons under the age of 18 shall be considered by courts.
The case for violation of customs regulations shall be considered at the location of the customs authority, which officers conducted proceedings in the case. The case shall be considered within a 15-day term from the day the customs officer or the court (judge) receives the materials required to render a judgment in the case.
The customs authority or the court (judge) considering the customs offense case may issue one of the following rulings:
- on additional verification;
- on the imposition of administrative penalties;
- on the termination of proceedings.
The ruling on additional examination shall indicate specific subjects, objectives and terms of examination. These actions shall neither violate the rights of a citizen nor harm the economic activity of a legal entity.
It should be noted that if a court ruling is rescinded and the case is closed or if the administrative penalty should be changed, the confiscated goods, vehicles, the amount of the penalty or its relevant portion shall be returned to the person or their representative. In the cases where it is impossible to return the confiscated goods and vehicles in kind, their value shall be returned, less the amounts of the proper customs payments at the rates that were in effect as of the day of confiscation.
The terms of imposing administrative penalties in cases for violations of customs regulations
Where customs authorities or courts (judges) consider cases for violation of customs regulations, the administrative penalty for the violation of customs regulations may be imposed not later than 6 months after the day the offense was identified. The term of imposing administrative penalties in cases for violations of customs regulations shall be stopped for the period the court is considering such cases.
Where the criminal proceedings have been closed but the offender’s actions have the characteristics of a violation of customs regulations, the administrative penalties for the violation of customs regulations may be imposed not later than 3 months after approving the decision on closing the criminal proceedings. However, the administrative penalties may not be imposed later than 2 years after the day of committing the violation.
The customs decision in the customs offense case may be challenged before the State Customs Service of Ukraine or before a local court of general jurisdiction acting as an administrative court in accordance with the established procedure.
The grounds for rescinding the ruling on imposition of administrative penalties or on termination of proceedings in the case for violation of customs regulations shall include, in particular, the following: the acts of the person who is held liable do not have the characteristics of a violation of customs regulations; proceedings in the case are not objective or are incomplete or consideration of the case is not objective; the conclusions that are set forth in the ruling do not correspond to the actual circumstances in the case. However, the other circumstances provided by laws may be recognized as grounds for rescinding or changing the ruling on the imposition of administrative penalties.
Enforcement of the ruling on the imposition of administrative penalties is a final stage in cases for violation of customs regulations that envisions the actual application of sanctions – a warning, a penalty and a confiscation. The procedures for and the order of the imposition of the penalties are set forth in the provisions of Chapter 73 of the Customs Code of Ukraine.
It is worth noting that decisions of customs authorities on the imposition of administrative penalties for violations of customs regulations shall be obligatory for enforcement. The rendered ruling of the customs authority shall be enforced after the term to challenge it ends.
The customs authority that rendered the ruling shall enforce it independently or through a state enforcement officer. If a ruling has not been submitted for enforcement during 3 months from the day of its rendering, the ruling shall not be enforced.
A warning in the form of an administrative penalty shall be enforced by the customs authority and envisions the announcement of the ruling to the person that is subject to administrative liability and the serving of a copy of such ruling upon such person. If the person is not available, a copy of the ruling with an acknowledgment of receipt shall be sent within three days to this person.
The fine shall be payable by the person within 15 days form the date when a copy of the ruling issued, and, in case an appeal is filed - within 15 days from the date when the appeal (administrative action) is dismissed.
The fine shall be payable by the person to the state budget. Should the fine not be paid within the specified term, the ruling of the customs authority or the court (judge) shall be sent for enforcement to the state enforcement authority at the place of residence or employment of the offender, or at the location of the offender’s property.
The ruling of the court (judge) imposing administrative penalty for customs offense by way of confiscation shall be executed by a state enforcement officer in accordance with law.
When it is impossible to confiscate goods or means of transport from the offenders by a state enforcement officer the cost of such goods or means of transport may be recovered upon a court order in accordance with the law.
Rulings of the customs authorities imposing administrative penalties for customs offenses against persons residing or staying outside Ukraine shall be executed at the expense of property held by such persons and located in the territory of Ukraine. Should the mentioned persons not hold any property in the territory of Ukraine, the procedure for execution of rulings of the customs authorities imposing administrative penalties for customs offenses shall be determined by the legislation of Ukraine and the relevant international treaties.
Violations in the field of export control in the Criminal Code.
The Law of Ukraine "On State Control of International Transfers of Military and Dual-Use Goods” of 02/20/2003 No. 549-IV (the “Law”) shall be the main normative act of Ukraine that determines violations and penalties in the field of export control.
The Law sets forth the types of violations (Article 24) that are committed by legal entities exporting the controlled goods and the appropriate sanctions for the commission of these violations (Article 25). Aside from that, Article 27 of the Law provides liability for violating the requirements of legislation in the field of export control by individuals who are exporters.
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Business entities that are natural persons and that violatelegislation in the field of state export control shall be subject to administrative, criminal and civil liability provided by law (Article 27 of the Export Control Law).
In particular, unlawful acts by business entities that are natural persons involving the goods, which may be used in the creation of nuclear, chemical, bacteriological (biological) and toxin weapons, that are committed in violation of the procedure for performing international transfers of goods subject to state export control, shall be determined to have the nature of the crime in accordance with Article 333 of the Criminal Code of Ukraine (Violation of the Procedure for Performing International Transfers of Goods that are Subject to State Export Control).
The said violations may also take the form of the preparation for bringing the relevant goods out of Ukraine or of an attempt to bring the relevant goods out of Ukraine without the appropriate permit providing the right to export goods that are included in the List of Goods Which International Transfers are Subject to State Export Control (or performing such acts using a canceled permit that had been issued some time ago). It also concerns the goods that are not included in the Lists but that necessarily are the goods, which may be used in the creation of the weapons of mass destruction or means of their delivery or of conventional weapons.
Liability for such violations is provided in the form of a penalty (from 2 to 5 thousand non-taxable minimum incomes of citizens or an up to 3 years’ imprisonment or an imprisonment for the same term and becoming ineligible to hold certain offices or engage in certain activities for a term of up to three years or without establishing a specific term.
In the event of a repeated commission the said acts or doing so in an organized group, the sanctions that are applied take the form of an up to 3 years’ imprisonment or an imprisonment for the same term and becoming ineligible to hold certain offices or engage in certain activities for a term of up to 3 years.
The Criminal Procedural Code of Ukraine establishes the procedure for conducting such investigations and imposing liability. In accordance with Article 333 of the Criminal Code of Ukraine, the investigation of crimes is included within the powers of the Security Service of Ukraine. The court shall impose liability for such offenses.
Legislation also provides liability for the development, production, purchase, storage, sale and transportation of weapons of mass destruction (Article 440 of the Criminal Code of Ukraine).
The objective aspect of crime is characterized by the acts related to the development, production, purchase, storage, sale and transportation of weapons of mass destruction (bacteriological/biological, toxin and chemical weapons) that are prohibited by the international agreements ratified by the Verkhovna Rada of Ukraine. Liability for such acts is established in the form of imprisonment for a term from 3 to 10 years.
Section 9. National commodity nomenclature of foreign economic affairs
9.1. The essence of the National commodity nomenclature of foreign economic affairs
In accordance with world practice, regulation of foreign economic activity requires customs control over the goods moving between countries.
The correct classification of goods is an important component of the customs regulation system, as it depends on the establishment of their value pursuant to objective criteria and, accordingly, the reasonable assessment and collection of customs payments.
When declaring goods, they are subject to classification, i.e. the codes are determined for the goods in accordance with the classification groups specified in the Ukrainian Classifier of Goods of Foreign Economic Activities (hereinafter - UKTZED).
UKTZED is compiled on the basis of the Harmonized System of Description and Coding of Goods and is approved by the Law on the Customs Tariff of Ukraine.
During the customs clearance of goods, the customs authorities control the correctness of their classification according to the UKTZED pursuant to the procedure established by the Order of the Ministry of Finance of Ukraine No.650 dated 30.05.2012 (hereinafter - Procedure 650). If a violation of the rules of commodity classification is detected during or after the customs clearance of goods, the customs body has the right to independently classify such goods. Decisions of the customs bodies regarding the commodity classification for the customs purposes are binding.
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Procedure № 650 — The working procedure of the customs payments department, the customs clearance unit of the customs authority and the customs post in resolving issues of classification of goods moving across the customs border of Ukraine, approved by the Order of the Ministry of Finance of Ukraine No. 650dated May 30, 2012.
In order to establish reliable information about the goods and their correspondence to the description of UKTZED, the customs authorities may request from subjects of foreign economic activity and citizens the samples of goods and their technical and design documentation for examination. The procedure for the interaction of structural units and territorial bodies of the Customs Service of Ukraine with the Specialized Laboratory for Expertise and Research during analyses and expertise was approved by the Order of the Ministry of Finance of Ukraine No.1058 dated December 2, 2016.
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Procedure № 1058 — The procedure for the interaction of structural divisions and territorial bodies of the State Fiscal Service of Ukraine with the Specialized Laboratory for Expertise and Research of the SFS during the conduct of research (analyses, expertise) is approved by the Order of the Ministry of Finance of Ukraine No. 1058 dated December 2, 2016.
To classify (code) the goods during customs clearance, the Customs Tariff of Ukraine is used. It is systematized in accordance with the UKTZED which is compiled on the basis of the Harmonized System of Description and Coding of Goods, and approved by the Law of Ukraine No. 674 -IX dated June 4, 2020 "On the Customs Tariff of Ukraine". The structure of the ten-character digital code designating the goods in the UKTZED includes the code of the group (first two characters), product entry (first four characters), product sub-entry (first six characters), product category (first eight characters), product subcategory (ten characters).
The coding (classification) of goods is carried out in accordance with the requirements of the UKTZED and is a technique that allows presenting the goods in the form of a group of signs (goods code) set by this classifier. In order to avoid incorrect classification, it is necessary to take into account that the UKTZED consists of three components:
- basic rules of interpretation of UKTZED;
- notes to the sections and groups of UKTZED (section, group, entry, sub-entry, category, subcategory);
- textual description of the UKTZED groupings and their numerical designation.
Goods in UKTZED are grouped on several information levels, starting with the levels with the most general description of the types of goods, and ending with the levels containing description of specific goods. The distribution of goods into groups is based on specific data. The distribution of goods into groups takes place on the basis of features that have practical significance, which is important for the purposes of foreign economic regulation (for example, the difference between brown and black horses is not important). UKTZED groups do not cross each other in terms of content, otherwise the classification of goods would be arbitrary and quite unreliable.
UKTZED contains 21 chapters (numbered with Roman numerals and not displayed in the product code) and 97 groups (numbered with Arabic numerals). Group 77 is not used.
UKTZED has the following levels of detail:
1. Sections are numbered with Roman numerals, which are not indicated in the commodity code. Contain notes that have legal force when classifying goods (the first basic rule of interpretation). At the level of sections, goods are grouped in accordance with the branches of industry by a combination of various goods characteristics:
- origin (sections I, II, V);
- functional purpose (sections IV, XI, XII, XVI, XVII, XVIII, XIX, XX, XXI);
- chemical composition (sections III, VI, VII);
- the material from which the product is made (sections VIII, IX, X, XIII, XIV, XV).
2. Groups - have a two-digit numbering in Arabic numerals, which has no connection with the numbering of sections. The first two characters of the product code correspond to the number of the group in which this product is classified. Contain notes that have legal force when classifying goods (the first basic rule of interpretation).
The 77th group is reserved and does not contain a textual description. At the level of groups, goods are detailed depending on the material from which they are made; from the functions they perform; from the degree of processing.
Some groups contain an additional level of classification - subgroups, which are numbered with Roman numerals and which are not reflected in the structure of the digital code. For example, group 39 consists of two subgroups: I. "Primary forms" (entries 3901 - 3914) and II. "Waste, trimmings and scrap; semi-finished products; articles" (entries 3915 – 3926).
When forming groups in UKTZED, the principle of the sequence of product processing is used - from raw materials to obtaining semi-finished products and finished products (raw materials - semi-finished products - finished products). For example, live cows are classified in commodity entry 0102, their meat is in commodity entry 0201, and ready-made food products made from this meat are in commodity entries 1601 - 1602.
3. Entries - have a four-digit numbering, in which the first two characters correspond to the number of the group that includes this product entry. The textual description of product entries has legal force for the classification of goods (the first rule of the basic interpretation rules). Product detailing at the level of entries has more diverse and specific features than at the level of groups.
4. Sub- entries are the lowest level of detailing of goods, at which the product code and its text description correspond to the UKTZED. They have a six-digit numbering, in which the first four characters correspond to the product entry into which this sub-entry is included. Additional details of the goods are used here, supplementing the above.
5. Categories - have an eight-digit numbering, in which the first six characters correspond to the number of the sub-entry that includes this category. The detailing of goods corresponds to the Combined Nomenclature of the European Union.
6. Subcategories – contain a description of the product and its ten-digit product code.
In UKTZED there are cases when the textual description of the entry, sub-entry, category and sub-category coincides. That is, the product position is not detailed. For example,0503 00 00 00 - "Horse hair and its waste ...".
In the UKTZED, a special punctuation system (comma - ",", semicolon - ";" and colon - ":") is of particular importance, which is used in the text description of the UKTZED product groups (entries, sub-entries, categories and subcategories).
A comma between two parts of the text description of the UKTZED group indicates that any product that is indicated before the comma can be made of any material.
A semicolon marks the demarcation of goods with different features (characteristics) that are combined in one commodity entry or sub-entry. That is, any definitions in the text description of the product group of UKTZED after the semicolon cannot be applied to the goods specified before the semicolon. It should be remembered that a new description of another product begins after a semicolon.
A colon means the continuation of the detailing of the product group at another level.
One of the important features of UKTZED is the presence of the so-called "hyphen system". The hyphen system provides for specifying a certain number of dashes (hyphens) before the text names of detailed groups of UKTZED (sub-entries, categories, subcategories). The number of hyphens corresponds to the level of grouping. The different number of inserted hyphens shows the depth of detail and facilitates the search for the appropriate text name of the product according to a certain algorithm - from a smaller number of dashes (hyphens) to a larger number. In some groups of UKTZED (entries and sub-entries) there are additional levels of detail for which no numerical code is provided. They are marked with symbols " - " or " - - " placed before the text description. Without taking into account the specified text description, if it is available, the product cannot be classified. For example, above the sub-entry 0408 11 with the textual description "- - dried" there is a textual description "- egg yolks", in front of which there is no numerical code. Accordingly, the textual description of sub-entry 0408 11 should be read as "egg yolks, dried".
As a rule, at the level of groupings (entries, sub- entries, categories and sub-categories), one or more types of goods (products) that are the most traded in the world trade are allocated in the UKTZED, for other types of goods a generalized grouping with a text description "others" is assigned "basket" grouping. Due to the "basket" groupings, which have the textual description "- other", all products are included in the product nomenclature without exception.
Some goods can be classified according to the material which they are made of, others - depending on the function that these goods are intended for. It is clear that the provision in which there is freedom of choice between material and function is not compatible with the requirements of UKTZED. Therefore, the UKTZED contains clear definitions and rules (basic rules of interpretation, notes to sections and groups), which regulate cases of partial coincidence of entries of UKTZED groupings or the impossibility of choosing the appropriate UKTZED group. This makes it possible to avoid partial overlaps, provided that the item (product) is designed to perform several functions or is made of several materials.
Notes to sections and groups of the product nomenclature regulate conflicting situations not only between material and function, when it is necessary to assess which one is superior - the material the product is made of or its functional purpose, but also cases of different degrees of processing of goods. Thus, notes to sections and groups make it possible to divide different commodity items and to determine their priorities when classifying certain types of goods. Certain notes exclude specific goods from specific sections, groups and item entries. For example, note 1(a) to group 02 says that this group does not include products that cannot be used for human consumption, of the type specified in entries 0201 - 0208 or 0210. I.e., if a hog carcass (subheading 0203 11 ), for some reason is not suitable for use as human food (the meat spoiled during storage, or a sick animal was slaughtered), then in this case this carcass cannot be classified in group 02, but must be classified in group 05 (commercial code 0511 99 80 00). Definitions of terms are given in the notes. The terms are used to simplify the textual description of groups. It is necessary to keep in mind that the meaning and interpretation of certain words and terms in the UKTZED do not necessarily correspond to their generally accepted meaning and interpretation. For example, the meaning of the term "tractor" (note 2 to group 87) also includes road tractors and other vehicles designed to tow trailers. The meaning of this term applies only to group 87. However, the UKTZED contains terms that apply to several groups or to the entire UKTZED. Based on this, it is not always enough to read the notes to certain sections and groups. It is also necessary to read notes to other sections and groups that relate to similar types of goods, the materials they are made of, and the functions they perform. In some cases, notes determine the features of classification of certain goods, for example:
- goods presented in sets (note 3 to section VI);
- goods made of several materials (note 5 to section XV);
- mixtures of different products (note 1 to group 9);
- parts of goods (note 3 to group 94);
- tools (note 3 to group 95).
9.2. Rules for determining commodity codes
Basic rules of UKTZED interpretation are an integral part of UKTZED. These Rules serve as a comprehensive guide for assigning goods to a certain classification group. There are six such rules. The first four regulate the procedure for determining the commodity entry (the first four characters of the code), determine the procedure for assigning the product to a certain commodity entry. The sixth rule is applied after the product entry is defined, and regulates the assignment of the product to the appropriate sub- entry, categories and sub-categories. The first four rules are applied exclusively sequentially, going from Rule 1 to Rule 2(a), from Rule 2(a) to Rule 2(b), and so on. Rule 3(a) cannot be applied without applying Rules 1, 2(a), 2(b) in sequence. Only in the case of the impossibility of applying the previous rule when classifying goods, the following one is allowed. The sixth rule can be applied if it is necessary to define a group within the framework of a defined commodity entry. The fifth rule concerns the classification of packaging, cases, containers, etc.
Basic rules of UKTZED interpretation:
1. The names of sections, groups and subgroups are given only for the ease of use of
UKTZED; for legal purposes, the classification of goods in UKTZED is carried out on the basis of the names of commodity entries and the corresponding notes to sections or groups and, unless these names provide otherwise, in accordance with the following rules:
2. (a) any reference in the entry title to any commodity shall also include incomplete or unfinished commodity, provided that it has the essential characteristic of a finished item. This rule also applies to a finished product (or one classified as finished under this rule), unassembled or disassembled;
(b) any reference in the entry title to any material or substance shall also include mixtures or compounds of that material or substance with other materials or substances. Any reference to a product made of a particular material or substance shall be construed as a reference to a product consisting in whole or in part of that material or substance. The classification of goods consisting of more than one material or substance is carried out in accordance with the requirements of rule 3.
3. In case if according to rule 2 (b) or for any other reasons, the goods prima facie can be attributed to two or more commodity entries, their classification is carried out as follows:
(a) preference is given to the entry in which the goods are described more specifically over the entries describing them more generally. However, in the event when each of the two or more entries relates only to a part of the materials or substances included in the composition of a mixture or multi-component product, or only to a part of the goods put up for sale in a set for retail trade, such entries are considered equivalent in relation to that product, even if one of them provides a more complete or accurate description of this product;
(b) mixtures, multi-component goods consisting of different materials or manufactured from different components, goods put up for sale in sets for retail trade, which cannot be classified under rule 3 (a), shall be classified by that material or a component that determines the main properties of these goods, provided that this criterion can be applied;
(c) goods which cannot be classified under rule 3 (a) or 3 (b), must be classified by the entry with the highest serial number among the entry numbers under consideration.
4. Goods that cannot be classified according to the above rules are classified by the entry that corresponds to the goods that are most similar to those in question.
5. In addition to the above, the following rules apply to the goods specified below:
(a) Cases for cameras, musical instruments, weapons, drawing instruments, ornaments and similar articles, specially shaped and designed to hold the relevant article or combination of articles, suitable for long-term use with the articles for which they are intended, are to be classified together with products packed in them. This rule does not apply to containers (packaging), which together with the product form a whole and give the latter significantly different properties;
(b) according to rule 5 (a), a container, together with the goods contained in it, shall be classified with those goods if it is a type of container or package that is normally used for packing those goods. This provision is optional if this container (packaging) is suitable for reuse.
6. For legal purposes, the classification of goods in product sub-entries, product categories and product subcategories is carried out in accordance with the name of the latter, as well as the notes applying to them, taking into account certain reservations (mutatis mutandis), the provisions of the above rules, provided that only the names of the same detailing level can be compared. For the purposes of this rule, the relevant section and group notes may also apply, unless the context indicates otherwise.
The Harmonized System Committee of the World Customs Organization has prepared explanations (in English and French) to the Harmonized System - "EXPLANATORY NOTES", which contain a comment on each commodity entry. These explanations contain comments on each commodity entry of the Harmonized System with a description of goods that are included or excluded from a specific commodity entry. Where possible, the content of the entry is explained along with the technical description of the goods in question (appearance, quality characteristics, methods of manufacture and use).
According to the UKTZED requirements, the commodity classification (coding) is carried out as follows. At first, in accordance with the first rule of the Basic Rules of Interpretation of the UKTZED, the relevant commodity entry is determined (the first four characters of the commodity code) which describes the classified commodity. At the same time, it is necessary to check whether there is a corresponding note to the section or group that regulates the classification of this product. After defining the corresponding product entry, sequentially are determined the sub-entry, category and sub-category the text description of which corresponds to the product.
9.3. Preliminary decisions
Preliminary decision on commodity classification in accordance with the UKTZED (hereinafter - PDCC) is issued by the customs authorities in relation to goods that are the object of a foreign economic agreement (contract) or another document used in international practice instead of an agreement (contract), including in relation to the Complete object (hereinafter - СO).
The PDCC is issued to the declarant or a person authorized by him and is valid for three years from the date of its issuance, if the facts and conditions on the basis of which this decision was made remain unchanged. PDCCs are issued before the beginning of the movement of goods across the customs border of Ukraine.
After the expiry of the validity period, the PDCC becomes invalid, which does not prevent the declarant or a person authorized by him to apply for a new PDCC.
In order to obtain a PDCC, the declarant or a person authorized by him submits (sends) a written application to the customs authority for a preliminary decision on the classification and coding of the goods, including a СO (hereinafter - the application) for one item of the goods in the form established by the Order 650. The following shall be attached to the application of the declarant or a person authorized by him:
- foreign economic agreement (contract) or other document used in international practice instead of an agreement (contract);
- technical conditions, technological schemes of product manufacturing (if available);
- photos, product drawings (if available);
- permits and certificates of authorized state bodies (if available);
- specifications, catalogs and passport data about the manufacturer's goods (if available);
- certificates of product origin, permits, marking labels (if available);
- product samples (if available).
The documents are submitted in the form of originals or their copies. If the original documents are written in a language other than Ukrainian or the official language of customs unions that Ukraine is a member of, the declarant or a person authorized by him shall ensure their translation into Ukrainian.
If there is confidential information about the goods (for example, in the name of the goods or in the composition of the goods), the declarant or a person authorized by him is obliged to inform in the application about the nature of such information.
Registration of the application takes place on the day of its actual receipt by the customs body in accordance with the established procedure in registration book of applications for PDCC.
If the application is submitted in the interests of the declarant or a person authorized by him, then a copy of the power of attorney drawn up in accordance with the requirements of Ukrainian legislation shall be attached to the application.
The period of issuing PDCC is 30 calendar days from the date of receipt of the relevant application by the customs authority. This period may be extended by the head of the customs body or a person performing his duties, but not more than by 15 calendar days, with notifying the person who submitted the request in writing or electronically about the reasons, before the end of the 30-day period.
If the declarant or a person authorized by him fails to submit all necessary documents and information for PDCC, the deadline for issuing PDCC is counted from the date of submission by the declarant or his authorized person of all missing documents. At the same time, the declarant or a person authorized by him is given a written or electronic notification about the requirement to submit additional documents no later than 15 calendar days from the date of receipt of the application.
If the declarant or a person authorized by him fails to provide the required documents or information, or if it is established that the application of this declarant or a person authorized by him has been examined by another customs authority regarding identical goods, the customs authority shall refuse to consider the application with justification of the reasons that became the basis for refusing to make the PDCC, with returning product samples (if they were submitted).
Refusal to consider the application does not prevent the declarant or his authorized person from re-applying, provided that the reasons that were the basis for the refusal are eliminated.
An official of the customs payments department checks in the database of the Unified Automated Information System of the State Customs Service of Ukraine (hereinafter referred to as UAIS) the presence of PDCC or Decisions for identical or similar goods to the ones specified by the declarant or a person authorized by him in the application.
The availability of PDCC is checked with the help of the software complex "Register of preliminary decisions on classification and coding of goods in UKTZED" of UAIS (hereinafter - UAIS Register of PDCC).
The availability of Decisions is checked using the "Classification Decisions" database of the UAIS "Inspector 2006" program.
If the customs authority previously made a Decision regarding the goods that are the object of a foreign economic agreement (contract) or other document used in international practice instead of an agreement (contract), regarding the declarant (or a person authorized by him) and such Decision has not been changed or canceled , and if the facts and conditions on the basis of which the Decision was made remain unchanged, then the PDCC is not granted, except in cases where the granting of a PDCC is considered for the CO.
During the next working day after the registration of the PDCC, its electronic copy, together with the available photos of the goods, is entered by an official of the customs payments department (CPD) into the UAIS Register of PDCC.
Information on PDCC made by customs authorities, with the exception of information that is confidential, is made public by the central executive body that ensures the implementation of state policy in the field of state customs affairs, in accordance with the requirements of Article 23 of the Customs Code of Ukraine.
The original PDCC is issued (sent) to the declarant or a person authorized by him, a copy remains in the customs authority that issued it.
PDCC is used by all customs authorities during customs clearance.
Absence of PDCC is not a reason for refusal of customs clearance, except in cases where a CO is provided for customs clearance.
The original PDCC and its copy are submitted by the declarant or a person authorized by him to the customs authority simultaneously with the documents for customs clearance of the goods, the details of which are given in this PDCC.
After verifying the PDCC copy with the original, the customs official returns the original to the declarant or to a person authorized by him. A copy of the PDCC remains with the customs authority.
During customs clearance, the customs authorities carry out identification of the goods in order to establish the conformity of its characteristics with the information about the goods given in the PDCC.
In the case of establishing the fact of non-compliance of the goods with the information given in the PDCC, the customs authority that found the non-compliance, provides information about this fact to the customs authority that issued the PDCC. Afterwards, a decision is made regarding the customs clearance of the presented goods in accordance with Ukrainian legislation.
The customs body that issued the PDCC shall revoke it in accordance with the procedure specified in Article 23 of the Customs Code of Ukraine.
In the case of loss of the original PDCC, the customs authority that issued it shall issue a PDCC duplicate to the declarant or a person authorized by him upon a reasoned request.
The duplicate is issued within 10 days from the date of submission of the application on the basis of information kept in the files of the customs body that issued it. The duplicate of PDCC is filled in with the date and number of the original, in place of which it was issued. At the same time, the word "DUPLICATE" is written above the registration number.
A note on the issuance of a PDCC duplicate is entered into the UAIS Register of PDCC during the next working day after the issuance of a duplicate PDCC. The validity period of a PDCC duplicate cannot exceed the validity period of the PDCC it is issued in lieu of. Only the customs authority that issued the original (or its successor) has the right to issue PDCC duplicates.
The PDCC is drawn up on the letterhead of the customs authority in the form established by Order 650, which also approved the Procedure for filling out the PDCC columns:
Column 1 indicates the full name of the customs authority that issued the PDCC.
In column 2, the PDCC registration number is indicated.
The PDCC registration number looks like this:
"PDCC - XXX - YYYY - ZZ" (in the case when PDCC is issued for goods other than СO);
"PDCC - CO - XXX - YYYY - ZZ" (in the case when PDCC is issued for the СO),where "XXX" is the first three digits of the code of the customs authority that accepted the PDCC;
"YYYY" - serial number of PDCC;
"ZZ" - the last two digits of the current year.
In column 3, the details of the declarant or a person authorized by him are indicated in the nominative case (full name/surname, first name, patronymic/, location/place of residence, EDRPOU code (Ukrainian state registry legal entity identifier) / registration number of the taxpayer's registration card or series and passport number (for natural persons who, due to their religious beliefs, refuse to accept the registration number of the taxpayer's registration card and have notified the relevant body of the state tax service about it and have a mark in their passport), contact phone number).
Column 4 indicates the date of issuance of the PDCC.
In column 5, the ten-digit product subcategory is indicated according to the UKTZED.
Column 6 indicates the full name of the product, its brand, model, grade, article number, modification, dimensions, packaging, completeness, manufacturer, country of origin.
In column 7, a detailed description of the product is indicated, including all information that is decisive for assigning this product to a ten-digit product subcategory of UKTZED, which is given in column 6. If necessary, references are given to the appendices to the PDCC, which contain images of the products, their parameters, individual characteristics, etc.
In column 8, the justification for issuing the PDCC is indicated (references to normative legal acts on commodity classification, Basic rules of interpretation of the UKTZED, relevant notes to sections and groups, explanations given to product entries of the UKTZED, etc.).
In column 9 of the original PDCC or its duplicate, the signature of the head (or deputy head) of the customs authority is affixed and the name and initials of the executor are indicated.
If the declarant or a person authorized by him provides samples of the product or its packaging (container), a photo of the product and/or its packaging is printed on the reverse side of the PDCC.
Section 10. Control lists
Ukraine, as an equal and integral partner, is a participant in all currently existing international security regimes, including the Wassenaar Arrangement (WA), the Nuclear Suppliers Group (NSG), the Zanger Committee (ZC), the Missile Technology Control Regime (MTCR) and the Australia Group (AG).
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INTERNATIONAL SECURITY – the state of international relations, which excludes the violation of peace or the creation of real threats to the security of nations in any form; activities of states and international institutions in maintaining such a state; a universal system of mechanisms, measures and guarantees, the totality of which excludes the use of force.
WASSENAAR ARRANGEMENT (WA) is an export control regime designed to promote regional and international security and stability by increasing transparency and accountability in transfers of conventional arms and dual-use goods and technologies, thereby preventing destabilizing accumulations.
The NUCLEAR SUPPLIERS GROUP (NSG) is an association of nuclear supplier states that have agreed on common principles for the export of “nuclear sensitive” items and seek to prevent the acquisition of nuclear weapons by countries not designated as nuclear. The Nuclear Suppliers Group guidelines and technical list cover industrial goods that can be used to build nuclear weapons.
ZANGER COMMITTEE (NC) is an informal organization of the participants of the Treaty on the Non-Proliferation of Nuclear Weapons (NPT), whose task is to determine the list of goods export of which in accordance with Article III.2 of the NPT must include the application of nuclear material safeguards, as well as conditions and procedures regulating its supply.
The MISSILE TECHNOLOGY CONTROL REGIME (MTCR) is an informal and voluntary association of countries united to prevent the proliferation of missile delivery systems that could contribute to the proliferation of weapons of mass destruction (other than manned aircraft).
THE AUSTRALIA GROUP (AG) is an informal forum of states that by agreeing on export control rules seek to prevent trade from contributing to the development and proliferation of chemical and biological weapons. Coordinating national export control measures helps countries participating in the Australia Group to fully implement their obligations under the Chemical Weapons Convention and the Biological and Toxin Weapons Convention.
The control lists are compiled, maintained and updated within all of the above regimes. Each of these lists is thematic with respect to its regime.
Later, these lists became the basis for the creation of national control lists of goods international transfers of which are subject to state export control. In Ukraine, there are two control lists, namely: the Single List of Dual-Use Goods (hereinafter - SL DUG) and the List of Military Goods.
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THESINGLE LIST OF DUAL-USE GOODS (Annex to the Procedure for the State Control over International Transfers of Dual-Use Goods, approved by Resolution of the Cabinet of Ministers of Ukraine dated January 28, 2004 No. 86)is a national Ukrainian control list of non-military goods, international transfers of which are subject to state export control of Ukraine.
Note
THELIST OF MILITARY GOODS, INTERNATIONAL TRANSFER OF WHICH IS SUBJECT TO STATECONTROL (Annex to the Procedure for the State Control over International Transfers of Military Goods, approved by the Resolution of the Cabinet of Ministers of Ukraine of November 20, 2003 No.1807) is the Ukrainian national control list of military goods, international transfers of which are subjectto state export control of Ukraine.
10.1. Structure of the control lists
The structure of the SL DUG of Ukraine is based on the relevant list of the European Union. It was developed taking into account all the previous experience of using “regime” lists and is as intuitive as possible, which makes it easy to use this list for all parties of the international transfers of goods, regardless of their level of knowledge in the field of export control.
From a practical point of view, the SL DUG of Ukraine is a list of alphanumeric designations assigned to goods included in this list, taking into account the character of the product, its functionality and the control regime for this product.
Conventionally, the SL DUG of Ukraine can be divided into two parts, namely: i) the reference part, which includes sections providing general notes and giving an idea of the terms and definitions found in the SL DUG, and ii) the commodity part, which consists of the goods descriptions that are subject to control and their alphanumeric designations.
The commodity part of the SL DUG of Ukraine includes 13 sections, which can also conditionally be divided into the main categories (10 of them in total) and additional sections (3 of them in total), namely:
Main categories
Category 0 Nuclear materials, facilities and equipment
Category 1 Special materials and related equipment
Category 2 Materials processing
Category 3 Electronics
Category 4 Computers
Category 5 Part one. Telecommunications. Part two. Information security. Part three. Special technical means
Category 6 Sensors and lasers
Category 7 Navigation and avionics
Category 8 Marine
Category 9 Aerospace and propulsion
Additional sections
Section “Sensitive” goods”;
Section “Very sensitive” goods”;
Section “Category I of goods that can be used in the creation of missile weapons.”
Each of the main sections includes all goods of a specific subject international transfers of which are subject to state export control.
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Category 9. “Aerospace and propulsion” of the SL DUG of Ukraine consists only of goods relevant to this topic, such as: various aviation and space vehicles, engines of various types that ensure their movement, separate units and components for them, and soon.
Each of the ten main categories is divided into 5 product groups, namely:
- A – Systems, Equipment and Components;
- B – Test, Inspection and Production Equipment;
- C – Materials;
- D – Software;
- E – Technology.
Regarding the alphanumeric designation, the following should be noted.
The alphanumeric designation consists of at least five characters (which is the main part of the designation) and is a so-called “entry of the control list.” Determining the entry of the control list is one of the basic elements in the system of commodity identification in the field of export control.
The first character (numbers from 0 to 9) in the alphanumeric designation indicates belonging to one of the ten main categories of the SL DUG of Ukraine.
The second character (Latin letters A, B, C, D, E) in the alphanumeric designation indicates belonging to one of the five groups of one of the ten main categories of the SL DUG of Ukraine.
The third character (digit) in the alphanumeric designation indicates the affiliation to a specific international export control regime or the fact that international transfers of this product are controlled only in Ukraine. The international export control regimes and national control in Ukraine are coded with this third character (number) in the alphanumeric notation as follows:
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Regime control
Code
1
Wassenaar Arrangement (WA);
0
2
Missile Technology Control Regime (MTCR);
1
3
Nuclear Suppliers Group (NSG);
2
4
Australia Group (AG);
5
5
Chemical Weapons Convention (CWC);
4
6
National control (NC).
9
The fourth and fifth characters (two-digit numbers from 01 to 99) in the alphanumeric designation mean the serial number of the controlled product.
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Alphanumeric designation:
9A012 – “Unmanned aerial vehicles”(”UAVs”), unmanned “airships”, related equipment and components…
Whereas:
- 9 – category “Aerospace and propulsion”;
- A – group of goods “Systems, equipment and components”;
- 0 – control regime Wassenaar Arrangement;
- 12 – two-digit number of a specific product.
The product can be simultaneously controlled by various international export control regimes. In such case, this product will be in the SL DUG of Ukraine under different headings, although the last two characters (fourth and fifth) in such entries will match.
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International transfers of unmanned aerial vehicles (UAVs) are controlled under both the Wassenaar Arrangement and the Missile Technology Control Regime. Therefore, UAVs are simultaneously controlled under the following entries in the SL DUG of Ukraine:
- 9A012 – “Unmanned aerial vehicles”(“UAVs”), unmanned “airships”, related equipment and components…; and
- 9A112 – “Unmanned aerial vehicles” (“UAVs”), other than those specified in 9A012…
That is, the third character of the alphanumeric designation indicates that the product is simultaneously controlled by the Wassenaar Arrangement and the Missile Technology Control Regime, respectively, and the sameness of the two-digit numbers of each of the specified alphanumeric designations indicates that in both cases the product is of the same type(UAVs), which, nevertheless, may differ in technical characteristics.
Usually, the description of the product, attached to the main part of the alphanumeric designation, is supplemented with additional information that clarifies the technical characteristics of the product. Such additional information is introduced into the SL DUG of Ukraine according to the principle of alternating letter and number designations, which are added to the main part of the alphanumeric designation of the product after a dot. The main additional information is provided in the subsection to the relevant entry of the SL DUG of Ukraine, and this subsection is designated with a letter. Further, even more detailed clarification of the main additional information receives a numerical designation. An even more detailed specification will again receive a letter designation.
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Entry of the SL DUG of Ukraine 1C010.e.1.b,where:
- 1C010 – the main part of the alphanumeric designation of commodity that corresponds to the entryv1C010 of the SL DUG of Ukraine – “Fibrous or filamentary materials”;
- e – sub-entry that corresponds to the entry 1C010.e of the SL DUG of Ukraine - fully or partially resin-impregnated or pitch-impregnated “fibrous or filamentary materials” (prepregs), metal or carbon-coated “fibrous or filamentary materials” (preforms) or ‘carbon fibrepreforms,’ having all of the following ...;
- 1 – sub-entry that corresponds to the entry 1C010.e.1 of the SL DUG of Ukraine– having any of the following:…;
- b – sub-entry that corresponds to the entry 1C010.e.1.b of the SL DUG of Ukraine– organic or carbon “fibrous or filamentary materials”, having all of the following: …
It should be noted that the first ten (main) categories of the SL DUG of Ukraine define all goods international transfers of which are controlled. However, among these goods there are those that cause concern more than others in terms of non-proliferation, security and counter-terrorism issues. Additional measures may be introduced for such goods, such as:
- special accountability to relevant export control regimes; and
- a complete ban on international transfers.
In order to emphasize the exceptional importance and facilitate the search, such goods were highlighted in separate (additional) sections of the SL DUG of Ukraine, namely:
- Section “Sensitive” goods”;
- Section “Very sensitive” goods”;
- Section “Category I of goods that can be used in the creation of missile weapons.”
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The item can be equally in all additional sections.
If an item listed in the main categories of the SL DUG of Ukraine needs to be entered into additional sections, its alphanumeric designation is copied from the main category, while the description and technical characteristics may differ.
The structure of SL DUG of Ukraine also includes such an important element as notes. SL DUG of Ukraine has several types of notes, namely:
- General notes;
- Notes;
- Special notes; and
- Technical notes.
General notes are given at the beginning of the SL DUG of Ukraine and provide general explanations both for individual sections and for the entire list as a whole.
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General notes
- The term “dual-use goods” in this List is used in the sense given in Article 1 of the Law of Ukraine “On the State Control over International Transfers of Military and Dual-Use Goods”.
General “Information Security” Note (GISN)
- “Information security” items or functions should be considered against the provisions in Category 5 – Part 2,even if they are components, “software” or functions of other items.
Special notes are found (i) in the general notes, (ii) in the part of the SL DUG of Ukraine called “Definition of terms used in this List” (more details about this section is below) and (iii) in the sections of the SL DUG of Ukraine. They provide additional explanations and point out that a product with a similar name, description and/or technical characteristics can also be found under another entry of both the SL DUG of Ukraine and the List of military goods.
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- Special Note to the General“Information Security” Note (GISN)
Clause“a” of the general note on software does not exempt from control the“software” specified in the second part of section 5 of this List(”Information Security”).
- Special Note to the term«Focal plane array» of the part of the SL DUG of Ukraine called «Definitionof terms used in this List».
This term does not include a set of individual sensitive elements or any two-,three- or four-element detectors, provided that time delay and integration are not performed within the elements.
- Special note to entry 1B234.
See also the List of military goods.
Technical notes are given in the part of the SL DUG of Ukraine called “Definition of terms used in this List” and in sections of the SL DUG of Ukraine. They provide a detailed technical explanation of a specific entry.
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- The technical note to the term “Chemical Means of Stopping Mass Disturbances” of the Section entitled“Definitions of Terms Used in used in this List”.
Teargases are a subgroup of the “means of stopping mass disturbances.”
- The technical note to entry0A001.i.
Steam generators specifically intended or prepared for the transfer of heat produced within the generator towards feed water to produce steam. In the case of the reactors on fast neutrons that also have an intermediate loop of the heat transfer agent, it is the steam generator located on the intermediate loop. In a reactor with a gas cooling system, the heat exchanger may be used to transfer heat to the secondary gas loop driving the gas turbine.
Notes are listed in the part entitled “Definitions of Terms Used in the List” of the SL DUG of Ukraine as well as in the Sections of the SL DUG of Ukraine. The notes provide some specifying interpretations of the entries that have an unclear or insufficiently conclusive information. The notes also show that there are exceptions where the goods under the relevant entry are not subject to Ukraine’s export control.
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- The note to the term“Operation, Administration or Servicing” in the Section entitled “Definitions of Terms Used in used in this List”.
”Operation, Administration or Servicing” does not include any of the tasks listed below or any of the key management functions related thereto:
a) preparation or updating of any cryptographic functionality that is not directly related to the creation of the authentication data or to the management of such data to support the performance of the tasks listed above in subparagraphs 1 or 2 of paragraph“a”; or
b) ensuring of any crypto graphic functionality concerning the data switching plane or article data plane.
- Note to entry 5A001.d.
In accordance with entry 5A001.d, the following shall not be controlled: “phased antenna arrays with electronic control of the direction pattern” that are used in the landing systems equipped with instruments meeting the requirements to microwave landing systems (MLS) of the International Civil Aviation Organization (ICAO).
Notes, technical notes and special notes may apply to the list entry, a subparagraph and to another note.
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Even at this level, the intuitive nature of the SL DUG of Ukraine manifests itself – the note applies to the structural element that matches the indents it has from the left edge of the sheet.
Equally important is the part of the SL DUG of Ukraine called “Definition of terms used in this List.” Export control is an extremely specific field with a deep emphasis on authentic terminology, where the definition of the term is the line between the issues of the presence or absence of grounds for the application of export control procedures, the possibility or impossibility of international transfer of controlled goods, and even a conviction or acquittal in criminal proceedings based on the fact of legislation violation in the field of state export control.
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More detailed information is in section 10.2 of this Handbook.
Being part of the structure of the SL DUG of Ukraine, the terms are conditionally divided into general terms and vector terms.
The general terms set forth in the Section entitled “Definitions of Terms Used in the List” of the SL DUG of Ukraine are marked with the quotation marks and denote the general framework terminology that applies to all the entries on the SL DUG of Ukraine, provided the entry does not have a note with a vector term.
The vector terms differ from the general terms in that they (i) are marked not only with the quotation marks but also are written in italics, (ii) specify the definition set forth by the general term, given the requirements of a specific entry, and (iii) appear only in the notes to the entries.
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- General term.
“Fibrous or filamentary materials” [Fibrous or filamentary materials] (Sections 0, 1, 8, 9) include the following:
a) continuous “monofilaments”;
b) continuous “yarn” and“foreyarn”;
c) “ribbons,” fabrics, fiber mats and volumetric weaves;
d) fine-cut fibers, staple fibers and connected (coherent) fiber layers;
e) mono- or polycrystalline thread-like crystals of any given length;
f) fiber mass of aromatic polyamide.
- A vector term in the note to entry1C210.
Note
Under entry 1C210, the term “fibrous orfilamentary materials” is limited to continuous monofibers, “yarn”, “woven roving”, “fiber bundles” or “ribbons”.
Pay attention!
The above vector note has a reference to general notes and such notes are not written in italics.
The presence of abbreviations and acronyms used in the SL DUG of Ukraine should also be noted. A clear understanding of the difference between these concepts and knowledge of the information provided in this list allows to significantly reduce the time of searching for goods in the SL DUG of Ukraine.
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Abbreviations and acronyms are listed in English in alphabetical order.
10.2. Search for products in the control lists
The search for goods in control lists can be defined as the process of identifying specific commodities in the field of export control.
Commodity identification in the field of export control should be understood as the procedure of finding goods intended for international transfers in control lists.
In practice, commodity identification in the field of export control is carried out by export control specialists.
Stable, high-quality performance of this kind of task is possible only with (i) the presence of deep technical knowledge, (ii) understanding of the structure of the control lists and (iii) the ability not to lose concentration for a long time (an error due to the human factor can harm both the country’s reputation in the international arena and its national interests).
Despite the fact that the search for goods in the control lists is a rather complicated process, nevertheless, it has a clear and logical algorithm of actions, the implementation of which, taking into account the above, guarantees a quality result.
The algorithm of actions during the search for goods in the control lists can be conventionally divided into the following stages:
- stage 1. Determining whether the product belongs to the relevant category of the SL DUG of Ukraine (0 - 9);
- stage 2. Determining whether the goods belong to the corresponding group of goods (A – E);
- stage 3. Determining whether the product belongs to the appropriate control regime (0-9) and its two-digit number;
- stage 4. Determining whether the goods belong to the sections “Sensitive” goods,” “Very sensitive” goods” or “Category I”;
- stage 5. Determining the correspondence of the search results to the provided information and making a decision on further actions.
Learn more about each step of the search in the control lists.
Stage 1. Determining whether the product belongs to the relevant category of the SL DUG of Ukraine (0 - 9).
The best option would be to use the help of a technical specialist, but in the absence of thereof such conclusion should be made on the basis of a logical analysis of the available data about the commodity. A clue can be the name of the commodity, a description of its technical characteristics, areas of use, etc. Even an image of the commodity can help to find more information through the Internet search.
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Regarding the opticalsensors product, it is clear from the name that it belongs to Section 6of the SL DUG of Ukraine.
Technical description of the product Software for modeling the project integration of missile launching vehicles indicates that this product belongs to Category 9 of the SL DUG of Ukraine.
A Google lens search allows to clearly understand that the product is a target-seeking head and belongs to Category 7 of the SL DUG of Ukraine.
Stage 2. Determining whether the goods belong to the corresponding group of goods (A – E)
As part of this stage of the search, the appropriate group of goods is determined according to the following principle:
A – completed systems, subsystems and their components;
B – machine tools with or without software for them and other similar products;
C – materials from which goods of group A are made, or with the use of which goods of group A are produced on goods of group B;
D – software used for goods of group A or goods of group B;
E - technologies and services related to the above groups.
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Each of the product groups belongs exclusively to its category!That is, for example, the technology of category 0 cannot refer to goods ofany other category of the SL DUG of Ukraine, unless otherwise specified inthe note.
Stage 3. Determining whether the product belongs to the appropriate control regime (0-9) and its two-digit number.
The next stage of the search is the identification of the product in accordance with the specific entry of the SL DUG of Ukraine. By searching by keywords (provided you know how to pick them up) or by rereading all the entries of the relevant group of goods in the selected category, the match is determined between the description, technical characteristics and designation of the entry of the SL DUG of Ukraine with the product that is being identified.
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During such a search, it is extremely important to remainfocused and pay attention to allentry notes, as well as general notes, if they are referenced.
Stage 4. Determining whether the goods belong to the sections “Sensitive” goods”, “Very sensitive” goods” or “Category I.”
The main mistake is stopping the search for goods in the SL DUG of Ukraine at the third stage, when a match has been found and the conformity of the goods to a specific entry has been determined. As already mentioned, stricter control measures are applied to goods that correspond to the sections “Sensitive” goods”, “Very sensitive” goods” and “Category I”, which can significantly complicate or make it impossible for exporters to transfer goods internationally. Unscrupulous exporters may attempt to circumvent these restrictions and prohibitions by, for example, providing false product information. Therefore, the stage of such verification is no less important than all others.
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In the sections “Sensitive” goods”, “Very sensitive” goods” and“Category I”, the description of technical characteristics can be eitheridentical to the corresponding entry in categories 0 - 9, or different. Inthe first case, it is noted that allgoods corresponding to an entry of categories 0 to 9 also correspond to aspecific entry in additional sections. In the second case, the entries inadditional sections correspond only to goods with the specified technical characteristics or those that exceed them.
Stage 5. Determining the correspondence of the search results to the provided information and making a decision on further actions.
According to the results of the search for goods in the control lists, export control specialists make a decision on the necessity to prepare a package of documents for obtaining permits for the right to carry out international transfers of goods.
The above stated algorithm is illustrated with some examples below.
Example 1.
Commodity - thermoset resin impregnated continuous "tow" with a length of 0.68 m, made of continuous carbon "monofilament", which has a "specific tensile strength" of 25.5 x 104 m.
Goal - to determine whether there are grounds for applying export control procedures.
Step 1.
The description of the product contains the words "thermoset" and "carbon". They indicate that specialized materials are involved. Thus, the section of the SL DUG of Ukraine is identified - Category 1. Special Materials and Related Equipment.
Step 2.
According to the product description, it is a "tow". Thus, the commodity is a material. The group of goods is determined - Group C. Materials.
Step 3.
Taking into account that the commodity in question is not just any "tow", but specifically a thermoset resin impregnated continuous "tow", it is reasonable to choose the word "thermoset" as the keyword for search.
Search results:
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Technical Note
“The 'glass transition temperature (Tg)' for1C008.a.2. thermosetting materials and 1C008.a.3. materials isdetermined using the 3-point bend method described in ASTM D 7028-07 orequivalent national standard. The test is to be performed using a dry testspecimen which has attained a minimum of 90% degree of cure as specified byASTM E 2160-04 or equivalent national standard, and was cured using thecombination of standard- and post-cureprocesses that yield the highest Tg”.
Technical Note.
“The 'Dynamic Mechanical Analysis glass transition temperature (DMA Tg )'for materials specified in 1C010.e. is determined using the method describedin ASTM D 7028-07, or equivalent national standard, on a dry test specimen.In the case of thermoset materials, degree of cure of a dry test specimenshall be a minimum of 90% as defined by ASTM E 2160-04 or equivalent nationalstandard”.
1C210.c
c)
Thermoset resin impregnated continuous "yarns", "rovings","tows" or "tapes" with a width of 15 mm or
less (prepregs), made from carbon or glass 'fibrous or filamentary materials'specified in 1C210.a. or .b.
A search for a keyword yielded 4 results, only one of which was in the control list entry 1C210.c. Furthermore, for the sake of completeness, here are two search options: the mistaken and the correct one.
Mistaken:
As part of this option, we compare the description, purpose, and technical characteristics with the entry 1C210.c and find a match with the first part of the entry. Then we find entries 1C210.a and 1C210.b and determine that the technical specifications of the commodity are greater than those specified in entry 1C210.a.2.
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2)
A "specific tensile strength" of 23,5 x104 m or more;
Based on the search results, we conclude that the commodity meets the description, purpose, and technical characteristics of entry 1C210.c of the SL DUG of Ukraine.
The final step is to check the availability of this entry in additional sections, where it is absent.
The final conclusion: the result of such a search is mistaken due to the omission of notes!
Here is the correct search option:
There is a note before entry 1C210.c:
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Note.
In 1C210, 'fibrous or filamentary materials'is restricted to continuous "monofilaments","yarns", "rovings", "tows" or"tapes"
According to general notes to the SL DUG of Ukraine:
«Fibrous or filamentary materials” (Categories 0, 1, 8, 9) include:
a) Continuous “monofilaments”;
b) Continuous «yarns» and «rovings»;
c) «Types», fabrics, random mats and braids;
d) Chopped fibres, staple fibres and coherent fibre blankets;
e) Whiskers, either monocrystalline or polycrystalline, of any length;
f) Aromatic polyamide pulp.
«Monofilament» (Category 1) or filament is the smallest increment of fibre, usually several micrometres in diameter.
Based on the search results, we can conclude that, taking into account the general note to the SL DUG of Ukraine, the "monofilament" material used to produce the commodity cannot be classified as any of the materials listed in the note to entry 1C210.c. While the product matches the description and purpose, it does not meet the technical characteristics specified in entry 1C210.c of the SL DUG of Ukraine.
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Only when a commodity simultaneouslymeets the description, purpose, and technical characteristics specified inthe relevant entry of the SL DUG of Ukraine it can be concluded that theproduct corresponds to the chosen control list entry.
Example 2 (abbreviated).
Commodity - liquid propellant rocket engines with a vacuum thrust of 0.8 kN, modified for use on a satellite.
Goal - determine the presence or absence of grounds for applying export control procedures.
Step 1.
The words "rocket engine" - Category 9 Aerospace and propulsion.
Step 2.
The engine is equipment - Group A.
Step 3.
A search for the keyword "liquid" indicates the following entries in Category 9 and Category I of the SL DUG of Ukraine.
Category 9:
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Liquid propellant rocket engines or gel propellant rocket motors, as follows:
Special note.
See also entry 9А119.
9A105.a
a)
Liquid propellant rocket engines or gel propellantrocket motors, usable in "missiles", other than those
specified in 9A005, integrated, or designed or modified to be integrated,into a liquid propellant or gel
propellant propulsion system which has a total impulse capacity equal to orgreater than 1,1 MNs;
9A105.b
b)
Liquid propellant rocket engines or gel propellantrocket motors, usable in complete rocket systems or
unmanned aerial vehicles, capable of a range of 300 km, other than thosespecified in 9A005 or 9A105.
a., integrated, or designed or modified to be integrated, into a liquidpropellant or gel propellant
propulsion system which has a total impulse capacity equal to or greater than0,841 MNs.
Section Category І:
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Liquidpropellant rocket engines or gel propellant rocket motors, as follows:
a)
Liquid propellant rocket engines or gel propellantrocket motors, usable in "missiles", other than those
specified in 9A005, integrated, or designed or modified to be integrated,into a liquid propellant or gel
propellant propulsion system which has a total impulse capacity equal to orgreater than 1,1 MNs.
Special note.
See also entry 9А119.
Pay attention!
Considering the structure of the SL DUGof Ukraine, though the search did not give such a result, it is necessary tocheck also the corresponding entries of other controls of the regime. In thiscase, due to the difference in the description (Liquid propellant rocketengines (9A105) and Liquid rocket propulsion systems (9A005)), the searchfound only entry of the MTCR control regime.
Thus, the following entries should be added to the search results:
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Liquid rocket propulsion systems containing any of the systems or components,specified in 9A006.
Special note.
See also entries 9А105 and 9А119.
9A006
Systems and components, specially designed forliquid rocket propulsion systems, as follows:
Special note.
See also entries 9А106, 9А108 and 9А120.
a) Cryogenicrefrigerators, flightweight dewars, cryogenic heat pipes or cryogenicsystems, specially designed
for use in space vehicles and capable of restricting cryogenic fluid lossesto less than 30% per year;
b) Cryogeniccontainers or closed-cycle refrigeration systems, capable of providingtemperatures of 100 K
(-173°C) or less for "aircraft" capable of sustained flight atspeeds exceeding Mach 3, launch vehicles or
"spacecraft";
c) Slushhydrogen storage or transfer systems;
d) Highpressure (exceeding 17,5 MPa) turbo pumps, pump components or theirassociated gas generator or
expander cycle turbine drive systems;
e) High-pressure(exceeding 10,6 MPa) thrust chambers and nozzles therefor;
f) Propellantstorage systems using the principle of capillary containment or positiveexpulsion (i.e., with
flexible bladders);
g) Liquid propellantinjectors with individual orifices of 0,381 mm or smaller in diameter (anarea of 1,14 x
10 -3 cm 2 or smaller for non-circular orifices) and specially designed forliquid rocket engines;
h) One-piececarbon-carbon thrust chambers or one-piece carbon-carbon exit cones, withdensities exceeding
1,4 g/cm 3 and tensile strengths exceeding 48 MPa.
For this example, it should be considered that the technical characteristics of the commodity do not correspond to those specified in the entries of the WA regime.
Therefore, according to the above information, if the notes are disregarded, the commodity, meeting the entries 9A105.a of the SL DUG of Ukraine, is a commodity of Category I of the MTCR, and, accordingly, severer restrictions and prohibitions should be applied to it.
But, as stated earlier, neglecting notes is a critical mistake.
According to the note to entry 9A105.a of Section "Category I" of the SL DUG of Ukraine, "Apogee liquid propellant rocket engines or positioning engines specified in entry 9A105.a, designed or modified for use on satellites, may be assigned to Category II of the MTCR while exported subject to end-use obligations on satellites and quantities corresponding to the declared end-use, and having a vacuum thrust of no more than 1 kN".
That is, under certain conditions, such commodity can belong to Category II of the MTCR and it is possible to determine this only by taking into account the notes.
10.3. How to use the correlation table
The term “correlation table” means the table of correspondence of the control list entries with the customs codes (commodity codes according to UKTZED – Ukrainian Classifier of Goods of Foreign Economic Activities).
Currently, there is no official document called “correlation table” in the Ukrainian export control regulatory and legal base.
At the same time, in practice, there is still a need to determine the control list entries depending on the customs codes according to the UKTZED. This necessity arises in two cases. The first arises during the commodity identification in the field of export control. The second - during customs control of goods.
During the commodity identification in the field of export control, with the aim of facilitating (narrowing) the search for goods in control lists, it is possible to use special types of software that can be conditionally considered a “correlation table”, since they contain links between goods under the UKTZED and possible control list entries. Such specialized software products are, for example, QD Pro and MD Office.
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To obtain information about the entry of the control list using the UKTZED code, it is enough to have access to the Internet, without the need to have any specialized licensed software product for customs clearance. The above-mentioned programs (QD Pro and MD Office) are available on the websites of software providers for brokers: QD Pro - at the link https:qdpro.com.ua/uk/goodinfo; MD Office - at the link https://www.mdoffice.com.ua/ru/aMDOGoodsInfo.html (registration required). These software products are just one of those tools that help determine the entry of the control list by narrowing the search field.
During commodity identification these programs allow export control specialists to narrow down the list of analyzed entries by using UKTZED codes, but at the same time it is necessary to take into account the following important points:
1. The information displayed on these resources (in the Export control section) is based on the control lists that were valid before the implementation of the SL DUG, while in many entries of the control lists there were no UKTZED codes, i.e. programs do not “pull” all potential entries from the list;
2. The regulatory documents used for the analysis, indicate the codes from past (repealed, no longer in force) versions of UKTZED, which may not correspond to the currently valid code for a specific commodity.
During the customs declaration procedure, in order to check goods for their presence in the control lists, customs officials also use special software products, which can be tentatively considered a “correlation table.”
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Customs clearance by the customs authorities is carried out with the help of the computer software complex “Inspector-2006”, created by the specialists of the State Customs Service of Ukraine with the involvement of a professional software development company. Submitting customs declarations and carrying out other customs formalities are performed by declarants or persons authorized by them only in electronic form using software products capable of exchanging the necessary information with customs authorities in a format that technically and organizationally meets the requirements of theInspector-2006 software complex and customs legislation of Ukraine.
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The information provided in the “correlation table” is for reference only. Determining the entry of the control list to which a specific product intended for international transfer corresponds is the prerogative of the State Export Control Service of Ukraine. At the same time, only the customs authority has the right to make a final determination of customs codes according to UKTZED. In accordance with clause 1.6 of the Procedure for the use in customs authorities of permits and conclusions of the SSECU and their electronic copies (Approved by the Order of the Ministry of Finance of Ukraine No. 649 dated 30.05.2012), in the permit document of the SSECU, the product code according to UKTZED is indicated for reference.
The use of the QD Pro software is illustrated below with as an example of searching for the corresponding entry in the control lists by the UKTZED code.
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UKTZED code is a complex, multi-layered structure, so correctly identifying the corresponding code for a specific product is crucial for proper commodity identification using this method.
Commodity: Rocket nozzle.
UKTZED code: 8412 90 20 90.
Step 1.
Go to the page using the link https:qdpro.com.ua/uk/goodinfo and see the following window,where we enter the UKTZED code for the rocket nozzle - 8412 90 20 90 - in the "Enter the product code according to the UKTZED" field and click the "Find" button.
Step 2.
In the next window, there are three sections: "Import", "Export" and "Transit", in each of which a lot of useful information can be found, including information related to export control issues.
In the "Import" section, items 13 and 14 list all entries of the SL DUG of Ukraine and the List of Military Goods respectively (19 entries in item 13 and 1 entry in item 14), to which the goods may be pertain, and therefore there is a likelihood that the exporter needs to obtain a permit for the right to import such goods.
In the "Export" section, items 2 and 3 provide the same information, but, in accordance with the title of this section, there may be a need to obtain a permit for the export of goods.
Items 2 and 3 of the "Transit" section, respectively, indicate the likelihood of applying export control procedures for the transit of goods through the territory of Ukraine.
Result
By using this, in essence, "correlation table," 19 entries of the SL DUG of Ukraine and 1 entry of the List of Military Goods were identified, all of which need to be checked for compliance of the description, purpose, and technical characteristics of the goods with the information provided in these entries.
10.4. Use of open sources and special programs
10.4.1. Control lists
As mentioned before, Ukraine is currently a member of all five international export control regimes.
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For a complete list of countries operating in international export control regimes, see “List of member-states of international export control regimes” (Appendix to the “State export control procedure for conducting negotiations related to the conclusion of foreign economic agreements (contracts) on export of goods” (as amended by Resolution No. 482of the Cabinet of Ministers of Ukraine dated May 17, 2021, approved by Resolution No. 500 of the Cabinet of Ministers of Ukraine dated June 6, 2012)
In accordance with the obligations assumed within the framework of the specified regimes and the control lists approved by these regimes, Ukraine ensures proper control over export of:
• conventional weapons (military goods) and related dual-use goods (WA);
• missile equipment and technologies (MTCR);
• nuclear and special non-nuclear materials, equipment and installations for their production, as well as certain types of other materials, equipment, software and technologies that can be used to create nuclear weapons or nuclear explosive devices (NSG, ZC);
• dual-use materials, equipment and technologies that can be used to create chemical and biological weapons (AG).
Ukraine, together with other member-states of the international export control regimes, takes part in the work of the relevant regimes on an ongoing basis regarding the introduction of changes and additions into the control lists of such regimes.
Such activity of the state within the regimes is carried out by reviewing the existing control lists and by relevantly updating them. Once the control lists are updated at the regime level, they are adjusted at the national level.
The necessity of constant (annual) changes and additions to such “regime” control lists arise due to the emergence of new technologies, the current security situation in the world and market trends.
Thus, by periodically introducing changes and additions into the national export control legislation in accordance with the changes and additions to the “regime” control lists, Ukraine maintains its national control lists up-to-date.
As part of Ukraine’s participation in the activities of international export control regimes, in the part that concerns goods that must be subject to control, the relevant state bodies involved in export control procedures and work related to the regimes, use various sources of information, including closed, which have a certain security grading.
At the same time, along with the use of closed information sources, open information sources are used, which include the official websites of international export control regimes, namely:
- The Wassenaar Arrangement, https://www.wassenaar.org/;
- The Missile Technology Control Regime, https://mtcr.info/;
- The Nuclear Suppliers Group, https://nuclearsuppliersgroup.org/en/;
- The Zangger Committee, http://zanggercommittee.org/;
- The Australia Group, https://www.dfat.gov.au/publications/minisite/theaustraliagroupnet/site/en/controllists.html).
The above official regime websites contain the most up-to-date information on updated control lists of goods currently subject to export control procedures.
Thus, open sources of information, in particular the above-mentioned official websites of international export control regimes, in the context of procedures for updating control lists, can be used as a “standard” to which national legislation in the field of export controls must comply.
10.4.2. Sanction policy
Currently, the restrictions that Ukraine must adhere to while implementing foreign economic activities by its subjects are quite large. They include the following:
• obligations of Ukraine in connection with membership in the UN;
• obligations of Ukraine as an OSCE member-state;
• obligations of Ukraine within the framework of international export control regimes;
• obligations of Ukraine within the framework of multilateral international agreements;
• reservations that should be taken into account in the context of Ukraine’s course towards European integration;
• reservations in the context of bilateral relations between Ukraine and the USA.
Subjects of international transfers of goods in order to conduct successful foreign economic activities must have up-to-date information on the state’s sanctions policy and be familiar with export control issues. It is for this purpose that information on the above-mentioned restrictions is open and available on the official website of SSECU (https://www.dsecu.gov.ua/ua/derzavy-vstanovleno-sanktsii).
The Wisconsin Project (or the Wisconsin Program) is an example of one of such open sources.
The Wisconsin Program is a specialized database (text search server) that was developed in 1995 by the private non-profit American research organization “Project “Wisconsin” (Washington, DC). Its founder and executive director is a law professor at the University of Wisconsin, who received a grant and funding to create the organization and develop the database. The company was founded in 1986.
The company collects, researches, summarizes information in the field of non-proliferation of weapons of mass destruction (WMD) and disseminates such information by publishing risk reports. The report publishes information about companies and individuals that may be related to the distribution of WMD, the company has information on about 5,000 such entities. But the database is not a “black list” of subjects, the information in it should be considered as a “red flag”, as such, which should cause concern to users. A certain product may be included in the “black list” of a specific country. But being on such a list does not always mean a violation of legislation in the field of export control, circumvention of sanctions or non-observance of embargoes by the subject, the reason may be money laundering, drug smuggling, etc. In addition, the report contains information on goods (about 800 items) that are subject to export control, their specification, an explanation of the reason for being subject to control, and methods of control. The information in the database comes from open public sources.
Users of the “Wisconsin” database are licensing specialists, representatives of customs authorities, border guards, investigators, representatives of the prosecutor’s office and persons who control and are responsible for the fulfillment of the international organizations requirements, such as the United Nations in the field of non-proliferation.
The “Wisconsin” database is used in about 30 countries around the world due to the support of the U.S. Department of State, in particular, several U.S. government agencies, Western Europe, almost all of Central and Eastern Europe, and quite a lot of users in Asia.
The search for the necessary information in the database can be done by company or person name. By entering such a search, you can get information about: the subject’s address; his contact information; other names used by the entity; presence in the “black list” or the “risk” list; information update dates; description of the subject’s activity; UN Security Council sanctions applied to the subject; offense; punishment; limitation; the list of countries that have restricted cooperation with the subject; list of penalties.
Since 2011, Ukrainian government bodies have had access to the Risk Report database, which was also developed and supported by the Wisconsin Project on Nuclear Arms Control. The task of Wisconsin Project is to prevent the proliferation of WMD and its delivery systems. The Risk Report database is an important source of open information (in English) on individuals/companies around the world suspected of supporting WMD proliferation. Multinational corporations and governments of about 35 countries use this database as a supporting tool in the analysis of transfers of controlled goods, the analysis of applications for obtaining permits for the export of controlled goods, and for the investigation of offenses in the field of export control. The database currently includes detailed information on more than 5,000 legal entities associated with the proliferation of nuclear, chemical, biological weapons and missile systems, a description of their activities and photographs of the goods they produce. The database also provides a description of the hundreds of goods that are subject to export control and the reasons why each of those goods is subject to control. The database also provides government officials with access to reference materials such as the full text of the provisions of multilateral export control regimes, several blacklists and warning lists of various countries, and the full text of the US Export Control Regulations.
Summarizing the issue of the use of open sources of information during activities related to export control, it should be noted that today open sources of special information are an important and very useful tool for a wide range of experts involved in solving export control issues, and is also a safeguard against strategic goods falling into the hands of persons involved in WMD proliferation programs.
Section 11. Case studies
11.1. Practical examples of identification of dual-use goods
According to subparagraph 71) of paragraph 2 of Article 544 of the Customs Code of Ukraine, one of the main tasks assigned to the customs authorities is the implementation of state export control within its powers, the scope of which is determined by the Customs Code and other laws of Ukraine.
In Ukraine, for the purposes of customs clearance the classification of goods is carried out in accordance with Ukrainian Classifier of Goods of Foreign Economic Activities (UKTZED), which is the commodity nomenclature of the Customs Tariff of Ukraine, approved by the Law of Ukraine "On the Customs Tariff of Ukraine" №674-IХ dated June 4, 2020, and also taking into account the Basic rules of UKTZED interpretation and commodity characteristics that are decisive for its classification.
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See Section 9 of this Handbook for more details on Ukrainian classification of goods of foreign economic activity.
However, for the purposes of state export control, classification only in accordance with UKTZED is not enough. This is confirmed by the fact that under the Procedure for the use in customs bodies of permits and conclusions of the State Service for Export Control of Ukraine and their electronic copies, approved by the Order of the Ministry of Finance of Ukraine №649 dated May 30, 2012, in the Authorization document of the SSECU the UKTZED code is provided for reference only. Therefore, it is important to carry out correct commodity identification in accordance with the control lists (lists of military and dual-use goods, approved by the Decrees of the Cabinet of Ministers of Ukraine № 1807 of November 20, 2003 and № 86 of January 28, 2004). The absence in the control lists of one or another UKTZED product code cannot affect the content of the control lists. Customs control and customs clearance of goods must be carried out taking into account the legal framework in the field of state export control, based on the correspondence of the description of features, technical characteristics or the scope of application of such goods in the control lists.
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The identification procedure and control lists are covered in Section 10 of this Handbook.
Below are practical examples of incorrect classification and identification, which creates prerequisites for harming the national interests of Ukraine in the field of state export control.
Case study № 1. Thermal imaging camera
When carrying out the customs clearance of thermal imaging cameras, some economic operators use the product code 9025 19 20 90 according to UKTZED, because the specified code was absent in the former lists of military and dual use goods, approved by the Decrees of the Cabinet of Ministers of Ukraine № 1807 of November 20, 2003 and № 86 of January 28, 2004, which may lead to non-compliance with the conditions of non-tariff regulation in terms of export control.
Partially, this situation is caused by the fact that there is no separate entry "thermal imaging camera" in the UKTZED and in the control lists.
Therefore, in order to avoid such problematic situations, the description, technical characteristics and purpose of the product, and not its name, should be decisive during the identification procedure. So, precisely by their description, technical characteristics and purpose, some "thermal imaging cameras" may correspond to entry ML15.d ("imaging equipment or infrared or thermal imaging equipment, specially designed for military use") of the "List of military goods, international transfers of which are subject to state control" (Appendix to the Procedure for the State Control over International Transfers of Military Goods, approved by the Decree of the Cabinet of Ministers of Ukraine № 1807 dated November 20, 2003).
In the Single List of dual-use goods, depending on the technical characteristics, "thermal imaging cameras" can be identified as special technical means, etc.
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Depending on the technical characteristics, "thermal imaging camera" may be both controlled in accordance with entry 6A003.b.4 of the Single List of Dual-Use Goods of Ukraine, and may not be subject to the state export control of Ukraine according to, for example, the notes to this entry.
An example of a "thermal imaging camera" that is not subject to the state export control is the FLIR C3-X Energy Audit Thermal Imager (128x96).According to note 3 to entry 6A003.b.4.b of the Single List of Dual-Use Goods of Ukraine, imaging cameras that have, for example, a maximum frame rate of 9Hz or less are not subject to control. The above-mentioned "thermal imaging camera", according to the specification, has an image frequency of 8.7 Hz.
Thermal imaging cameras in the form of digital cameras, which are intended for photographing, video recording, observing objects, in particular, in conditions of insufficient lighting, fog, smoke (in case of fires), and do not have devices for measuring values related to the characteristics of infrared radiation of objects, are classified under commodity entry 8525 of UKTZED. Such goods are not regarded in group 90 in accordance with the requirements of note 1 (h) to UKTZED group 90.
According to the requirements of UKTZED and the Regulation of the European Commission on classification "Commission regulation (EU)" № 314/2011 dated March 30, 2011, infrared thermal imaging cameras that have the function of measuring temperature (determining the level of infrared radiation) and which graphically or digitally display images of different temperatures in color on the display are classified in the product category 9025 19 20 of UKTZED.
Since these devices measure the level of infrared radiation and determine the temperature of the object, and not the amount of heat absorbed or released by a solid body, liquid or gas, they cannot be regarded under the UKTZED product entry 9027.
Unequivocal classification of thermal imaging cameras according to UKTZED is possible on the basis of complete information about their functional purpose and technical characteristics, which are decisive for classification.
In addition, according to the notes to the control lists, UKTZED product codes are given for reference. Under the legislation of Ukraine, the main prerequisite for making a decision on identification is the conformity of the goods declared for customs clearance with the name and description of the corresponding goods given in the control lists.
Case study № 2. Ricin
Next, we will review Ricin (UKTZED code 3002 90 90 00, white odorless powder, well soluble in water); the chemical name - ricin.
Castor oil is widely used in civil industry. But at the same time, castor bean seeds are very poisonous (active substances - toxalbumin, ricin, ricinin). Currently, there are various studies on the use of ricin in the treatment of some types of lymphoma; in this case, it affects tumor tissues specifically due to which healthy cells are not damaged.
And despite the fairly wide use of ricin and the availability of castor oil in any pharmacy, according to entry 1C351.d.4, Ricin belongs to the category "Pathogens and "toxins", dangerous to humans and animals."
Case study № 3. Sapphires
Also worthy of attention is the case of an attempt to export artificial sapphire with impurities. Foreign economic operator as part of the execution of the foreign economic contract was to supply the "Products of optical monocrystalline sapphire with Ti coloring admixture - optical elements, preforms of various shapes and sizes". The declaration for the goods was submitted with the following wording: The preforms are polished from artificial optical single-crystal sapphire with a coloring admixture, the optical quality of the material is Grade.... It is used in scientific equipment and pertains to the general industrial purpose. The UKTZED code is 9001 90 90 00, not listed in any list.
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The information (including description of UKTZED codes) in this case study is presented in accordance with the state of affairs at the time of the incident and does not fully correspond to its current state
At the same time, before filling the declaration, the foreign economic operator received the conclusion of the Chamber of Commerce and Industry stating that according to the results of the study, the products from artificial monocrystalline optical corundum (sapphire) (AI2O3) optically processed: elements, preforms, plates, rods, tubes, substrates with or without a tinting additive of titanium oxide (AI2O3:Ti), refer to code 9001 90 90 00 (optical fibers and optical fiber bundles, other optical fiber cables, sheets and plates of polarizing material: lenses, prisms, mirrors and other optical elements of any materials, unframed, except for such elements of optically untreated glass, others). Based on this conclusion, presented as an expert evaluation in the field of state export control, the foreign economic operator tried to prove that the goods are not subject to export control due to the discrepancy between the UKTZED code (9001 90 90 00) provided by the Chamber of Commerce and the UKTZED code given in the corresponding entry of the control lists (7103 10 00 00).
Furthermore, it should be noted that:
- the purpose of addressing of the foreign economic operator to the Chamber of Commerce and Industry was to "determine the product code in accordance with the Ukrainian classification of goods of foreign economic activity (UKTZED)";
- in accordance with the legislation of Ukraine, the Chamber of Commerce, to which the foreign economic operator addressed, does not have the authority to carry out an examination in the field of state export control of Ukraine.
Having processed the specified declaration, the customs office received an independent expert opinion on the commodity identification, according to which the specified product corresponded to entry 6.C.5.a of the Single control list of dual-use goods Ukraine (Appendix 1 to the Procedure for State Control over International Transfers of Dual-Use Goods, approved by Decree of the Cabinet of Ministers of Ukraine No. 86 of 28.01.2004) "Synthetic crystalline "laser" host material in unfinished form of: titanium doped sapphire", which can be used in the creation of conventional types of weapons, military or special equipment.
Due to the fact that the items that were planned to be exported, according to their characteristics, can be used for the "development", "production" or "use" of dual-use goods, their international transfers are subject to the state export control of Ukraine. Therefore, in accordance with the legislation of Ukraine, this product cannot be exported without the corresponding permit document of the State Service for Export Control of Ukraine.
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The words in "quotes" are given in the meaning according to the "Definition of terms used in the Single control list of dual-use goods Ukraine".
Thus, the timely and professional actions of the customs authority became the main factor in preventing this offense in the field of the state export control.
Case study № 4. Aluminum products
In today's world, it is impossible to do without aluminum. Alloys based on this metal are so widely used in a wide variety of industries that they have become truly irreplaceable. This metal is extensively used in aviation, automotive, electrical engineering, instrument making, construction and other industries. Aluminum is an important strategic raw material.
The importance of this material is emphasized in the UKTZED - a special group 76 "Aluminum and products from it" is allocated.
Given the wide use of aluminum and alloys of this metal, there is a need to distinguish goods that can be freely transported onto the territory of other countries from those whose transfer is limited and controlled. In order to solve this problem, it is necessary to pay attention to certain characteristics that allow classifying the goods as controlled, for example:
- "material with a high strength-to-density ratio" (aluminum alloys capable of having a tensile strength of 0.46 GPa or more);
- specially prepared compounds or powders for the manufacture of gas diffusion barriers resistant to corrosion by UF6 (for example, aluminum oxide), with a purity of 99.9% by weight or more, with a particle size of less than 10 μm, measured according to the B330 standard of the American Society for Testing Materials (ASTM), and with a high degree of uniformity in particle size;
- aluminides (nickel aluminides containing a minimum of 15% by weight of aluminum, a maximum of 38% by weight of aluminum and at least one additional alloying element; titanium aluminides containing 10% or more by weight of aluminum and at least one additional alloying element);
- aluminum alloys having any of the following characteristics: a tensile strength of 240 MPa or more at a temperature of 473 K (200 °C); or a tensile strength of 415 MPa or more at a temperature of 298 K (25 °C);
- aluminum alloys (Al-Mg-X or Al-X-Mg, Al-Zn-X or Al-X-Zn, Al-Fe-X or Al-X-Fe);
- discrete, multi-phase, polycrystalline fibers of aluminum oxide in the form of chopped fibers or mats, containing 3% by weight or more of silicon dioxide with a " modulus-to-density rating " of less than 10 x 106 m;
- aluminum powder in the form of either spherical or spheroidal particles with a size of less than 200 μm and an aluminum content of 97% (by weight) or more, if at least 10% of the total weight consists of particles with a size of less than 63 μm according to the standard ISO 2591-1:1988 or its national equivalents;
- aluminum alloys having both of the following characteristics: "capable of having" a tensile strength of 460 MPa or more at a temperature of 293 K (20 °C); and manufactured in the form of pipes or cylindrical solid forms (including forgings) with an external diameter exceeding 75 mm;
- beryls (beryllium and aluminum silicate) in the form of emeralds or aquamarines;
- triethylaluminum (TEA), trimethylaluminum (TMA) and other pyrophoric alkyl and aryl derivatives of lithium, sodium, magnesium, zinc and boron;
- ceramic powders with the following composition: simple or complex oxides of zirconium and complex oxides of silicon or aluminum;
- valves completely made of aluminum, aluminum alloy, nickel or nickel alloy containing more than 60% nickel by weight, or protected by a coating of such materials;
- "aluminum alloys" refers to alloys with a tensile strength of 190 MPa or more, measured at a temperature of 293 K (20 °C).
This information can be specified in the accompanying documentation (technical specifications, quality certificates, certificates of analysis, certificates of conformity, etc.).
Case study № 5. Batteries
Almost every civilized person today has a device that requires batteries to operate: a television remote control, a wall clock, a cell phone, or a camera. All these gadgets have become so common that no one tries to understand the essence of their batteries functioning, and meanwhile, more than two centuries have passed since the invention of the prototype of the modern battery.
Batteries can be divided into primary, which are not designed to be charged by any other energy source, and secondary, which are designed to be charged by an external power source.
Primary elements and batteries can be made in different shapes and sizes. They are usually cylindrical or pill-shaped. In these elements, electricity is generated due to chemical reactions.
The primary element is mainly a vessel with an alkaline or non-alkaline electrolyte (for example, potassium or sodium hydroxide, ammonium chloride or a mixture of lithium chloride, ammonium chloride, zinc chloride and water), in which two electrodes are immersed. The anode, as a rule, is made of zinc, magnesium or lithium, and the cathode (depolarizing electrode) can be made of manganese dioxide (mixed with coal powder), mercury oxide or silver oxide. In lithium primary cells, the anode is lithium and the cathode is e.g. thionium chloride, sulfur dioxide, manganese dioxide or iron sulfide. Anhydrous electrolyte is used because of the solubility and reactivity of lithium in aqueous solutions. Alkaline or neutral are usually used in air-zinc primary cells electrolyte. Zinc is used as an anode, oxygen that diffuses into the element is used as a cathode. Each electrode is equipped with a terminal or other device for connection to the external circuit. The main feature of a primary cell is that it is difficult or poorly recharged.
Elements can be grouped in batteries either in series, or in parallel, or in series-parallel.
Electric batteries (rechargeable batteries and secondary batteries) are characterized by the fact that the electrochemical action is reversible in order for the battery to be charged. They are used as storage of electricity and as its source when the need arises. Steady voltage is passed through the battery, which causes certain chemical changes (charge); when the battery terminals are subsequently connected to the external circuit, these chemical changes are reversed and cause steady voltage in the external circuit (discharge). This phenomena cycle - charge and discharge - can be repeated during the battery lifetime.
Accumulators are mainly a tank filled with electrolyte, in which two electrodes with terminals for connection to the external circuit are immersed. In many cases, the tank can be divided into several parts, and each compartment (cell) is a battery in itself; these elements are usually connected in series to provide a higher voltage. Several elements connected in this way are called a battery. Also, several batteries can be combined in a larger case. Accumulators can consist of liquid or dry cells.
The following must be taken into account for the implementation of state export control over batteries: international transfers of batteries with an energy density of more than 550 W x h/kg (for primary elements) and more than 300 W x h/kg (for secondary elements) at 20 °C are subject to control.
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Energy density (W x h/kg) is calculated by multiplying the rated voltage by the rated capacity in ampere-hours (A x h)and dividing the product by the mass in kilograms. If the nominal capacity is not specified, the energy density is calculated as the product of the square of the nominal voltage and the discharge duration in hours, divided by the product of the load resistance during discharge in ohms and the mass in kilograms.
Thermal batteries designed or modified for missiles and unmanned aerial vehicles with a range of more than 300 km are also subject to control.
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Thermal batteries are disposable batteries in which a solid non-conductive inorganic salt is used as an electrolyte. These batteries contain pyrolytic materials that, when ignited, melt the electrolyte and activate the battery.
Practical advice
Below are groups of goods that are very difficult to identify at first glance. It is necessary to analyze the technical characteristics very carefully, comparing them with those given in the control lists, and the scope of application in order to determine the belonging to these or other control lists.
The following list contains goods that, depending on the technical characteristics, can be used to create nuclear weapons:
The following goods can be used to create chemical or biological weapons:
11.2. Explanations for customs front-line officers about the initial identification of dual-use goods
In accordance with Article 12 of the Law of Ukraine № 549-IV dated February 20, 2003 "On the State Control over International Transfers of Military and Dual-Use Goods", initial identification of goods, as well as the implementation of necessary measures related to obtaining permits for the international transfers of such goods is the responsibility of the business entity.
The customs authorities, in turn, verify the correctness of the declared information, including compliance with export control requirements. At the same time, the main emphasis should be placed on the conformity of the description of features, technical characteristics or the scope of application of the goods to the entries specified in the Lists.
The state control over the listed goods applies to both new and used goods.
In some cases, for the convenience of identification of chemical compounds or their mixtures, the name of the chemical compound and its registration number of the Chemical Abstracts Service (CAS number) are indicated in the Control Lists. Chemical compounds that have the same structural formula (including hydrates) are subject to control regardless of name and CAS number. CAS numbers cannot be used as unique identifiers because some forms of chemical compounds listed in the control lists have different CAS numbers, so as the mixtures which they are a part of.
International transfers of "services and works" related to the "development", "production", "use", assembly, testing, "modification" and modernization of products, equipment, materials, "software" and "technology", listed in the Control Lists, are subject to control to the same extent.
All available sources of information regarding the goods and subjects of international transfer should be used for commodity identification: technical documentation and images/photos (drawings, passports, descriptions), information posted on the Internet, etc.
There is no universal algorithm for the correct identification of all goods, but there are a few points that should arouse suspicion and become the basis for a more detailed check of the declared information:
- availability of information regarding the sender or recipient as subjects of international transfer of controlled goods;
- availability of gray/green wooden boxes used for transportation (such containers are typical for military goods);
- inconsistency of the appearance of the product or its marking with the data specified in the technical, other accompanying documentation or generally known information;
- availability of references to military standards (MIL) in the accompanying documents;
- the presence in the accompanying documents of codes/ciphers, which correspond to the entry of the goods in the Control Lists by the format (for example, 9A012);
- the presence of a danger sign of classes 1 ("Explosive"), 6 ("Poisonous and infectious substances"), 7 ("Radioactive substances")
- the product has a known military application (for example, unmanned aerial vehicles);
- the product does not correspond to the economic activity of the exporter/importer;
- payment for the goods is made by a third party who is not the recipient;
- the package specified in the accompanying documentation (for example, packing sheets/information) is not typical for the declared goods;
- product labeling indicates other senders/recipients than declared;
- the transport route/mode of transport is economically unreasonable or illogical.
All these questions cannot clearly indicate the pertinence of the goods to the control lists, however, the presence of the above-mentioned factors, especially several in combination, should be the subject of detailed and meticulous consideration in terms of the implementation of restrictions in the field of the state export control of Ukraine.
ANNEXES
Annex 1 National peculiarities of the export control system of dual-use goods in Ukraine
NATIONAL PECULIARITIES OF THE EXPORT CONTROL SYSTEM OF DUAL-USE GOODS IN UKRAINE
Ukraine is a member of the UN and OSCE and is a party to all the fundamental international treaties and conventions, in particular: the Treaty on the Non-Proliferation of Nuclear Weapons, the Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on their Destruction, the Convention on the Prohibition of the Development, Production and Stockpiling of Bacteriological (Biological) and Toxin Weapons and on their Destruction, the Comprehensive Nuclear-Test-Ban Treaty, and the Agreement Between Ukraine and the International Atomic Energy Agency for the Application of Safeguards in Connection with the Treaty on the Non-Proliferation of Nuclear Weapons. Aside from that, Ukraine is also a participant in all the international export control regimes.
Law of Ukraine No. 549 “On Government Control over International Transfers of Military-Purpose and Dual-Use Goods” is a legal basis for implementing the provisions of the guidelines of international export control regimes into national legislation.
The hierarchy of export control legislation may be represented as a structure that has six conditional levels:
In 1991, the Law of Ukraine No. 959-XII “On Foreign Economic Activity” was passed that established a legal framework for the government in the field of regulating certain types of sensitive goods. Article 20 of this Law provides that the export and import of weapons, ammunition, military equipment and special components for their production, of explosive and nuclear materials (including the materials in the form of heat transfer assemblies), technologies, machinery, plants, special non-nuclear materials and related services, sources of ionizing radiation as well as other types of products, technologies and services that are presently used in the creation of weapons and military equipment or are a state secret of Ukraine as provided by laws of Ukraine may be performed only by foreign economic activity entities that are exclusively authorized by Ukraine as a state.
The legal basis for the implementation of the guiding principles of international export control regimes into national legislation is the Law of Ukraine No. 549-IV “On Government Control over International Transfers of Military-Purpose and Dual-Use Goods”. The Law provides that state export control is a set of measures to exercise control over international transfers of military-purpose and dual-use goods and their use by the legal entity or individual that is exercised by the specifically authorized executive body on state export control and other state authorities with a view to safeguarding national security interests and in accordance with Ukraine’s international commitments.
The resolutions of the Cabinet of Ministers of Ukraine (the “RCMU”) concerning the field of state export control include the following:
Resolution of the Cabinet of Ministers of Ukraine of 11/20/2003 No. 1807 “On Approving the Procedure for State Control over International Transfers of Military-Purpose Goods” (as revised and updated by RCMU of 08/09/2017 No. 596) establishing the procedure for exercising state control over international transfers of military-purpose goods;
Resolution of the Cabinet of Ministers of Ukraine of 11/28/2003 No. 86 “On Approving the Procedure for State Control over International Transfers of Dual-Use Goods” (as revised and updated by RCMU of 01/11/2018 No. 1) establishing the procedure for exercising state control over international transfers of dual-use goods;
Resolution of the Cabinet of Ministers of Ukraine of 06/08/1998 No. 838 “On Approving the Regulation on Granting Entities Engaged in Performing International Transfers of Goods the Authority to Export and Import Military-Purpose Goods and the Goods Containing Information that is a State Secret” (as revised and updated by RCMU of 08/29/2018 No. 805) establishing the procedures using which business entities may be granted the authority to perform the export/import of military-purpose goods and the goods containing information that is a state secret;
Resolution of the Cabinet of Ministers of Ukraine of 06/12/1999 No. 1228 “On Approving the Regulation on Granting Entities Engaged in Performing International Transfers of Goods the Authority to Export and Import Military-Purpose Goods and the Goods Containing Information that is a State Secret” that specifies foreign economic activity entities entitled to participate in the export/import of military-purpose goods and the goods containing information that is a state secret as well as some specific goods categories that they may sell and specific types of the trading activity that they may carry out for the defined purposes;
Resolution of the Cabinet of Ministers of Ukraine of 06/06/2012 "On Approving the Procedure for Government Export Control over the Conduct of Negotiations Related to the Entry into Foreign Economic Agreements (Contracts) on the Export of Goods” that establishes the procedure for state export control over business entities registered with the State Service of Export Control of Ukraine as entities engaged in performing international transfers of goods to conduct negotiations in connection with entering into foreign economic agreements (contracts) on exporting goods (military-purpose goods, dual-use goods as well as other goods that are not included in both Lists) to the countries that are subject to an export embargo imposed by Ukraine;
Resolution of the Cabinet of Ministers of Ukraine of 07/15.1997 No. 767 "On Approving the Regulation on the Procedure for the Conduct of Expert Evaluation in the Area of Government Export Control” that establishes the procedure for conducting the examination of the goods, which international transfers are subject to state export control, and of the business entities intending to perform international transfers of such goods;
Resolution of the Cabinet of Ministers of Ukraine of 07/17/2003 No. 1080 “On Approving the Procedure for State Attestation of the Internal Compliance Program Established by the Business Entity Performing International Transfers of Goods” establishing the procedure for conducting state examinations of the internal compliance program created by the business entity participating in an international transfer of the goods that are subject to state export control;
Resolution of the Cabinet of Ministers of Ukraine of 05/27/1999 No. 920 “On Approving the Regulation on the Procedure for the Issuance of Guarantees and Exercising State Control over Performance of Commitments to Use the Goods Subject to State Export Control for the Declared Purposes” establishing the procedure for the issuance of state guarantees to Ukrainian end users concerning the imported goods that are subject to state export control, imposing state control over the performance of these guarantees as well as imposing control measures over activities of foreign end users with regard to the guarantees that they provide concerning the goods imported from Ukraine.
The orders that concern the field of state export control include the following:
Order of the State Service of Export Control of Ukraine of 01/09/2004 “On Approving the Instructions on the Procedure for Completing Applications for Authorization Documents, Guarantee and Other Documents that are Provided by the State Service of Export Control of Ukraine” that establishes the procedure for completing all types of applications for different types authorization documents of the State Service of Export Control of Ukraine as well as the content and scope of the information that must be included in the applications;
Order of the State Service of Export Control of Ukraine of 04/27/2009 No. 31 “On Approving the Instructions on Registration with the State Service of Export Control of Ukraine of Ukrainian Business Entities as Entities that Carry out International Transfers of Goods” establishing the procedure for registering Ukrainian business entities as entities that carry out international transfers of goods, which must be carried out based on a preliminary examination. It determines the form of the registration application as well as the content and scope of the information that must be included in the application;
Order of the State Service of Export Control of Ukraine of 11/29/2004 No. 355 “On Approving the Instructions on the Procedure for Formalizing and Using Authorization Documents in the Field of State Export Control” establishing the procedure for the issuance and use of authorizations and conclusions of the State Service of Export Control of Ukraine to perform international transfers of goods that may be referenced by the customs authorities in the course of customs clearance of the goods;
Order of the State Service of Export Control of Ukraine of 10/05/2009 No. 86 “On Approving the Form of Conclusion Regarding the Possibility to Conduct Negotiations, Forms of Reports and Establishing the Reporting Deadlines” approving the form of conclusion concerning the conduct of negotiations related to the entry into foreign economic agreements (contracts) on the export of goods, the form of the relevant reports and the deadlines for their submission to the State Service of Export Control of Ukraine;
Order of the State Service of Export Control of Ukraine of 01/23/2019 No. 68 “On Approving the Instructions on Completing the Application for the Authority to Export and Import Military Purpose Goods and the Goods Containing Information that is a State Secret” establishing a unified procedure for completing the form of application for the issuance/extension of validity of the authority for foreign economic activity entities with a view to exporting and importing military-purpose goods and the goods containing information that is a state secret as well as establishing the form of such application;
Order of the Cabinet of Ministers of Ukraine of 11/20/2003 No. 690 “On Improving the Mechanism of Control over International Air Transportation of Military-Purpose and Dual-Use Goods” that requires the Ministry of Transport and the State Service of Export Control of Ukraine to send lists of crews and air carriers that are capable of transporting military cargoes by air to the addresses of the said bodies as well as of Ukrainian and foreign air carriers that may be engaged to transport the supplies of certain military-purpose goods;
Order of the Ministry of Economic Development and Trade of Ukraine of 01/27/2014 No. 74 “On Approving the Instructions on Formalizing Materials of Administrative Offenses in the Field of State Export Control” that establishes procedures for preparing the materials and registering administrative offenses in the field of state export control, registering administrative offense cases and referring them to the bodies authorized to consider such cases;
Order of the Ministry of Economic Development and Trade of Ukraine of 01/27/2014 No. 1490 “On Approving the Procedure for Considering Cases of Violations by Legal Entities of Legislation in the Field of State Export Control” that establishes procedures of the State Service of Export Control of Ukraine for considering violations of government legislation in the field of export control by business entities engaged in international transfers of goods.
The State Service of Export Control of Ukraine is the central executive authority charged with the implementation of the government policy in the field of export control of Ukraine. In accordance with Decree of the President of Ukraine of 04/08/2011 No. 448 “On the State Service of Export Control of Ukraine” as revised and updated by Resolution of the Cabinet of Ministers of Ukraine of 03/31/2015 No. 159 “On Approving the Regulation on the State Service of Export Control of Ukraine” as revised and updated, the activities of the State Service of Export Control of Ukraine are directed and coordinated by the Cabinet of Ministers of Ukraine through First Vice Prime Minister – Minister of Economic Development and Trade[27].
[27]Decree of the President of Ukraine of 04/08/2011 No. 448 “On the State Service of Export Control of Ukraine”; Regulation on the State Service of Export Control of Ukraine, Article 1 https://zakon5.rada.gov.ua/laws/show/448/2011; Resolution of the Cabinet of Ministers of Ukraine of 03/31/2015 “On the State Service of Export Control of Ukraine,” “Regulation on the State Service of Export Control of Ukraine,” Article 1 https://zakon2.rada.gov.ua/laws/show/159-2015-%D0%BF#n9.
Decree of the President of Ukraine of 04/08/2011 No. 448 and Resolution of the Cabinet of Ministers of Ukraine of 03/31/2015 No. 159 establish the following main tasks of the State Service of Export Control of Ukraine: implementation of the government policy in the field of state export control over international transfers of military-purpose and dual-use goods and other goods which are not included in the lists of goods subject to state export control and to which state export control procedures may be applied in accordance with law as well as the introduction of proposals as to the formulation of the government policy in the field of state export control.
The State Service of Export Control of Ukraine shall control international transfers of goods that are subject to state export control based on the national control lists of military-purpose and dual-use goods, technologies and software, which international transfers require special authorizations in accordance with the Law of Ukraine of 02/20/2003 No. 549-IV "On Government Control over International Transfers of Military-Purpose and Dual-Use Goods.” The national control lists of goods of Ukraine are prepared based on the control lists of multilateral export control regimes, which contents are similar to the lists of the European Union, the USA and other countries.
Lists of goods which international transfers are subject to control are provided in annexes to Resolution of the Cabinet of Ministers of Ukraine of 11/20/2003 No. 1807 “On Approving the Procedure for State Control over International Transfers of Military-Purpose Goods” (as revised and updated by Resolution of the Cabinet of Ministers of Ukraine of 08/09/2017) and Resolution of the Cabinet of Ministers of Ukraine of 01/28/2004 No. 86 “On Approving the Procedure for State Control over International Transfers of Dual-Use Goods” (as revised and updated by Resolution of the Cabinet of Ministers of Ukraine of 01/11/2018 No. 1) respectively.
The Law of Ukraine also establishes the circumstances under which the Government of Ukraine is entitled to regulate international transfers of the goods that are not specified in the national control lists. These are the transfers of goods to the countries that are subject to resolutions of international multilateral organizations or the rules of national legislation imposing an embargo on the supply of such goods, imported goods, the goods that are subject to state export control and the goods which possible end use is related to weapons of mass destruction (WMD) or means of their delivery or the goods that have the military end use. Such international transfers of goods require an authorization issued by the State Service of Export Control of Ukraine.
The Single List combines some of the separate lists of international export control regimes, eliminates duplication of the elements and organizes the other elements into a general unified structure of goods classification. All the elements included in the Single List of Dual-Use Goods are classified using a five-digit alphanumeric system. Each digit stands for a certain characteristic of the element, which ensures that the traders and personnel responsible for the exercise of export control understand the nature of the element.
The first digit determines the category of the controlled element:
Category 0. Nuclear plants, materials and equipment;
Category 1. Special materials and their related equipment;
Category 2. Processing of materials;
Category 3. Electronics;
Category 4. Computers;
Category 5. Communication and “Protection of Information”;
Category 6. Sensors and lasers;
Category 7. Navigation equipment and avionics;
Category 8. Maritime business;
Category 9. Aerospace industry and propulsion/power plants.
The second digit determines the subcategory of the element:
A. Systems, equipment and components;
B. Testing, control and production equipment;
C. Materials;
D. Software;
E. Technology.
The third digit determines the international regime that is the origin of the controlled element:
0 Wassenaar Arrangement
1 Missile Technology Control Regime (MTCR);
2 Nuclear Suppliers Group (NSG);
3 Australia Group (AG);
4 Chemical Weapons Convention (CWC);
5 Not used;
6 Not used;
7 Not used;
8 Not used;
9 Reserved for national control.
The fourth and fifth digits determine the specific element that is subject to control. Similar goods that are subject to control by different international regimes are assigned the same fourth and fifth digits.
Besides, the Single List of Dual Use Goods sets forth “sensitive goods” and “very sensitive goods” that are similar to the relevant lists contained in the list of dual-use goods of the Wassenaar Arrangement.
Steps to be taken by the business entity intending to perform international transfers of goods that are subject to state export control.
The main stages that the company completes as part of export control procedures are the following:
Stage one: registration with the State Service of Export Control of Ukraine.
The registration of the business entity of Ukraine with the State Service of Export Control of Ukraine as an entity engaged in performing international transfers of goods is the first important stage of export control procedures. It is at the stage that the goods are classified and included in the category of goods subject to the application of state export control procedures. Following the results of such registration, the business entity is granted the status of a business entity engaged in performing international transfers of goods. This status is an obligatory precondition to being issued the relevant authorization documents of the State Service of Export Control of Ukraine and performing international transfers of controlled goods.
Stage two: determination of procedures for export/import of the goods.
National export control legislation has different procedures for export/import of goods depending on the category of goods (military or dual-use) and the availability of prohibitions or restrictions on the export of goods to a specific state.
a) procedures that depend on the category of goods
If, following registration, the goods are included in the category:
- that is not subject to state export control, their export/import is carried out without the application of authorization procedures of export control;
- of dual-use goods, their export is carried out with the application of authorization procedures under the general pattern of export control, while in the case of imports such procedures are applied only to the categories of such goods determined by legislation;
- of military-purpose goods or the goods that are physical storage media of secret information, their export/import is subject to the authorization procedures and the condition for performing such export/import is the obtaining by the entity of the special authority to perform such activity.
b) procedures that depend on the availability of restrictions
If, following registration, the availability was identified of restrictions on the export of goods to a specific state, the contract on their export may be concluded only after the business entity obtains the relevant authorization document (conclusion) of the State Service of Export Control of Ukraine entitling the business entity to conduct negotiations related to the entry into such a contract.
c) procedures that depend on the type of authorization document
If the business entity performs international transfers of controlled goods only occasionally, it may do so under the general export control procedures through obtaining one-time authorization documents.
If the business entity intends to become a permanent participant in foreign economic operations in controlled goods, it is provided with the opportunity to perform a simplified export control procedure: it would be issued general and open-ended authorization documents. The possibility of being issued such documents is sort of a privilege and requires the business entity to perform an additional stage in the form of establishing its own internal compliance program (ICP), to perform its state registration with the State Service of Export Control of Ukraine and obtain the relevant registration certificate.
Stage three: establishment of the internal compliance program
Generally, business entity’s establishment of the internal compliance program is a recommendatory rule of law. However, given the specific nature of international transfers of controlled goods, the establishment of ICP is beneficial to the business entities intending to perform the relevant operations in such goods in the international market both from the point of view of security and economic benefit.
However, the business entity that established ICP has advantages over other entities. In accordance with law, it is these business entities exactly that are entitled to obtain general and open-ended authorization documents as well as obtain the relevant authority to export/import military-purpose goods and the goods containing information that is a state secret.
Stage four: obtaining the authority to export/import certain categories of goods
In accordance with legislation of Ukraine, to export/import military-purpose goods and the goods containing information that is a state secret, business entities planning to perform such export/import shall, except in the cases provided by clause 4 of the “Regulation on Granting Business Entities the Authority to Export and Import Military Purpose Goods and the Goods Containing Information that is a State Secret” approved by Resolution of the Cabinet of Ministers of Ukraine of 06/08/1998, No. 838 obtain the relevant authority from the Cabinet of Ministers of Ukraine.
Stage five: conduct of negotiations on the export of goods
If the business entity intends to enter into foreign economic agreements (contracts) on the export of goods, which supplies to the relevant foreign country are subject to restrictions, such business entity, before entering into such contract, shall obtain the authorization document (conclusion) of the State Service of Export Control of Ukraine.
Stage six: taking into consideration export control requirements when entering into contracts
Any foreign economic agreement (contract on international transfers of “sensitive” goods is crucial to the foreign economic activities of the business entity. The contract is also an important element within the export control system. However, in addition to contracts, this system also uses the following:
· additional documents in the form of end user certificates, import certificates, delivery confirmation certificates and
· a number of specific instruments in the form of an authorization system (with the possibility of refusals) and a system of inspections of using the goods for their intended purpose (both documentary that are based on reports and physical that are conducted by means of performing “physical” control in the territory of the end user).
Stage seven: obtaining guarantee document from the foreign business entity
Guarantee documents are a specific and very important export control tool. Usually, such documents have the form of appropriate certificates (end user certificates, import certificates, delivery confirmation certificates etc.) and are an integral part of the business entity’s application for the authorization document.
Following the expert examination, the State Service of Export Control of Ukraine obtains information about the possibility of deviation of the goods from their end use, it may instruct the business entity to provide written guarantees of the end user regarding the possibility of inspecting the use of the goods for their intended purpose in the territory of the end user.
Another condition for the issuance of the authorization document may be the provision of a delivery confirmation certificate of the goods verifying the fact that the goods were delivered to the end user. As such, the business entity is recommended to obtain end user’s written guarantees of the provision of such document.
Stage eight: obtaining the authorization documents
If the business entity performed all the necessary stages listed under the previous subparagraphs, it may apply to the State Service of Export Control of Ukraine for the relevant authorization documents. To do this, it has to submit an application in the established form to the State Service of Export Control of Ukraine together with the documents related thereto. The types of such documents and their number depend on the specific international transfer of goods and the type of the authorization document (one-time, general or open-ended).
Stage nine: performance of the international transfers of goods
The authorization documents of the State Service of Export Control of Ukraine that were issued to the business entity entitle it to perform the international transfers of goods that are specified in these documents.
Stage ten: control of the delivery of the goods to the end user
In accordance with export control legislation, control of the delivery of the goods to the end user may be performed by business entity’s obtaining reliable information about such delivery and submitting a report on this to the State Service of Export Control of Ukraine.
The document verifying the delivery of the goods shall be drawn up by the body of the country of destination of the goods authorized to issue such documents.
Stage eleven: control of end-use of the goods
Export control legislation provides that in the case of exporting goods, the exporting company shall take measures to inspect the end use of the goods and provide information about this to the State Service of Export Control of Ukraine as well as help the state authorities of Ukraine in performing such inspections.
Stage twelve: reporting
The business entities that were issued the authorization documents shall submit reports to the State Service of Export Control of Ukraine on the following:
· results of conducting negotiations in the course of which a foreign economic agreement (contract) was entered into on the export of goods, which supplies to the relevant foreign country are subject to an embargo;
· the actually performed export/import of such goods;
· the use of the goods for the intended purposes;
· results of verifying the delivery and end use of the goods that were exported from Ukraine.
Registration with the State Service of Export Control of Ukraine of Ukrainian business entities intending to carry out international transfers of goods
The form of the Certificate is approved in Appendix 2 to the " Instructions on Registration with the State Service of Export Control of Ukraine of Ukrainian Business Entities as Entities that Carry out International Transfers of Goods", approved by the Order of the State Service of Export Control of Ukraine No. 31 dated 27.04.2009.
The explanation is a document that the State Service of Export Control of Ukraine uses to actually help the business entity get some bearings regarding what its further steps should be in the export control activity, such as:
· the necessity of applying the authorization procedures to specified goods;
· the existence of limitations or reservations relating to the exports of goods to specific countries;
· the necessity of applying an additional procedure (for example, to secure the authority to export/import military-purpose goods) etc.
Unlike the certificate that states a legal fact of entity’ registration and is valid for a period of up to three years, the explanation is a document that is constantly updated if the entity registers new goods or expands its export operations to new foreign sales markets.
The Certificate may be used only by the business entity that is specified in it.
The validity of the Certificate and the relevant explanations thereto may be canceled by the State Service of Export Control of Ukraine in cases where violations are identified that are envisioned by Article 24 of the Law of Ukraine "On State Control for International Transfer of Military and Dual-Use Goods.”
A decision on stopping the validity of the Certificate and the relevant explanations thereto or canceling them shall be notified by the State Service of Export Control of Ukraine to the business entity in writing within 10 days after its approval and shall set out the relevant grounds for the decision.
Besides, the business entity shall draw up a reminder card concerning the observance of requirements in the field of state export control, the card to be signed by the manager of the business entity. As to the other obligations, the business entity shall notify the State Service of Export Control of Ukraine within one month of changes to any details and information contained in the application or the documents submitted together with it.
Below is the sample of Ukrainian business entity’s drawn-up reminder card.
Reminder card
concerning the observance of requirements in the field of state export control
In accordance with the Law of Ukraine "On State Control for International Transfer of Military and Dual-Use Goods” (the “Law”) and other legal acts as well as legal acts of the President of Ukraine and the Cabinet of Ministers of Ukraine in the field of state export control, the business entity engaged in performing international transfers of goods shall:
fully comply with all the requirements of the above documents;
enter into foreign economic agreements (contracts) concerning international transfers of goods in accordance with law and with due regard to the requirements to the performance of such transfers imposed by the Cabinet of Ministers of Ukraine (Article 17 of the Law);
refuse to enter into foreign economic agreements (contracts) concerning international transfers of any goods or participate in their performance in any other manner than that envisioned by the Law, if it should become aware of the fact that such goods may be used by a foreign country or foreign business entity to create weapons of mass destruction or means of their delivery (Article 17 of the Law);
refuse to perform a foreign economic agreement (contract) concerning international transfer of any goods, if it should become aware of the fact that the goods would be used for some other purposes or by a different end consumer than those specified in such agreement (contract) or the documents related thereto, based on which the authorization, report or international import certificate was issued (Article 17 of the Law);
provide the State Service of Export Control of Ukraine with complete information for the issuance of the authorization document and bear responsibility provided by law for the authenticity of this information;
provide the State Service of Export Control of Ukraine with full and authentic information about the known end use of the goods, which international transfer is planned to perform, as well as the original copies of warranty documents confirming the use of the goods only for the purposes declared by the business entity or the end user (Article 19 of the Law);
take measures to check the delivery and end use of the declared goods in the event of their export and provide the State Service of Export Control of Ukraine with information about this as well as facilitate the performance of such checks by the state bodies of Ukraine authorized to perform them (Article 19 of the Law);
submit written reports to the State Service of Export Control of Ukraine on the actually performed international transfers of goods specified in the application and on the use of the goods for the declared purpose (Article 22 of the Law);
upon request by the State Service of Export Control of Ukraine, submit documents and information necessary for it to perform export control measures, including warranty documents, technical information and other document related to the entry into and execution of foreign economic agreements (contracts) on the performance of international transfers of goods as well as ensure the safekeeping of the documents related to the entry into and performance of the said agreements (contracts) based on which authorizations, reports or international import certificates were issued during five years after the day on which the process of international transfer of goods was completed (Article 22 of the Law);
if the business entity has been informed by the State Service of Export Control of Ukraine or such entity learned through some other channel of the possibility of full or partial use of any goods intended for export or temporary export to other countries for the purpose of the development, production, assembly, testing, repair, technical maintenance, modification, modernization, operation, management, storage, discovery, identification or dissemination of the weapons of mass destruction or the means of their delivery; or for military end use in the countries, with respect to which the resolutions of the United Nations Security Council and other international organizations, whose member Ukraine is, or national legislation impose a full or partial embargo on the supply of military purpose goods, this entity shall apply to the State Service of Export Control of Ukraine for a permit to export these goods irrespective of whether or not such goods are specified in the lists (Article 10 of the Law);
The business entity shall notify the State Service of Export Control of Ukraine within one month of changes to any details and information contained in the application or the documents submitted together with it.
I have read and understood this document:
DIRECTOR _________________ Yu. V. Stepanchenko
(title) (signature) (Surname, name, patronymic)
The procedure for completing the application form is set out in Section III of these Instructions on Registration with the State Service of Export Control of Ukraine of Ukrainian Business Entities as Entities that Carry out International Transfers of Goods approved by order of the State Service of Export Control of Ukraine of 04/27/2009 No. 31 (registered with the Ministry of Justice of Ukraine on 07/15/2009 at No. 637/16653).
Below is a sample of Ukrainian business entity’s drawn-up application for different types of commodities.
Reference to the relevant application letter
(Application is Annex 1
to the Instructions on Registration with the State Service of Export Control of Ukraine of Ukrainian Business Entities as Entities that Carry out International Transfers of Goods)
Application
for a preliminary examination of goods registration with the State Service of Export Control of Ukraine of the business entity of Ukraine as a subject of international transfers of such goods
No. 03/28-02 of February ___, 20__
#tableId {null margin: 0 auto !important; }#tableId {null margin: 0 auto !important; }#tableId {null margin: 0 auto !important; }#tableId {null margin: 0 auto !important; }#tableId {null margin: 0 auto !important; }#tableId {null margin: 0 auto !important; }#tableId {null margin: 0 auto !important; }#tableId {null margin: 0 auto !important; }#tableId {null margin: 0 auto !important; }#tableId {null margin: 0 auto !important; }#assignedTableId-1706617511476 {margin-left: -22.95pt; border: none; margin: 0 auto !important; }1. Information about business entity of Ukraine
1.1 Name of business entity – Resurs Limited Liability Company
Resurs LLC
1.2. EDRPOU Code
1
1
2
2
3
3
4
4
1.3. Location (place of residence of individual entrepreneur)
1 Myrhorodska St. Poltava, 01600,Ukraine
1.4. Legal form of organization of limited liability company
1.5.Principal activity of business entity – manufacture of military hardware, wholesale and retail trade in chemical substances
2. Military purpose goods,which international transfers are intended to perform
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Full name(description) of goods
UKTZED Code
Control list
Resolution of the Cabinet of Ministers of Ukraine
entry
2.1
2.2
2.3
2.4
2.5
1.
BTR-60 Armored Personnel Vehicle
Information is specified in accordance with this column
Resolution of the Cabinet of Ministers of Ukraine of 11/20/2003 No. 1807
ML6.a
2.
Technology (technical, design and operation) documents are particularly intended for the development, production and operation of BTR-60 armored personnel vehicle
or
Operation and maintenance manual of BTR-60 armored personnel vehicle
(the first completing option is for manufacturers (developers) of such technology)
See. paragraph 1
Resolution of the Cabinet of Ministers of Ukraine of 11/20/2003 No. 1807
ML22.а
3.
Dedicated components (spare parts)of BTR-60 armored personnel vehicle
or
543 98 44 crank-shaft
(the first completing option is for manufacturers (developers) of such components)
See. paragraph 1
Resolution of the Cabinet of Ministers of Ukraine of 11/20/2003 No. 1807
ML6.a
3. Military purpose goods that may be admitted in accordance with the established procedure for civil use which international transfers are intended to perform
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Full name(description) of goods
UKTZED Code
Control list
Resolution of the Cabinet of Ministers of Ukraine
entry
3.1
3.2
3.3
3.4
3.5
4. Military purpose goods that are admitted in accordance with the established procedure
for civil use which international transfers are intended to perform
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Full name(description) of goods
UKTZED Code
Control list
Resolution of the Cabinet of Ministers of Ukraine
entry
4.1
4.2
4.3
4.4
4.5
1.
D30-KP aircraft engine
See. paragraph 1 of chapter 2
Resolution of the Cabinet of Ministers of Ukraine of 11/20/2003 No. 1807
ML10.d
2.
Airplane AN-32B, factory number4455789990
See. paragraph 1 of chapter 2
Resolution of the Cabinet of Ministers of Ukraine of 11/20/2003 No. 1807
ML10.а
5. Dual use goods
which international transfers are intended to perform
(aside from certain types of goods marked with an asterisk in the list of goods that may be used in the creation of conventional types of weapons; and military or special equipment specified in section A of part one of the list of goods that may be used in the creation of nuclear weapons; and part one of the list of goods that may be used in the creation of chemical weapons; and part one of the list of goods that may be used in the creation of bacteriological (biological) and toxin weapons)
#tableId {null margin: 0 auto !important; }#tableId {null margin: 0 auto !important; }#tableId {null margin: 0 auto !important; }#tableId {null margin: 0 auto !important; }#tableId {null margin: 0 auto !important; }#tableId {null margin: 0 auto !important; }#tableId {null margin: 0 auto !important; }#tableId {null margin: 0 auto !important; }#tableId {null margin: 0 auto !important; }#tableId {null margin: 0 auto !important; }#assignedTableId-1706617589219 {margin-left: -23pt; margin: 0 auto !important; }No.
Full name(description) of goods
UKTZED Code
Control list
Resolution of the Cabinet of Ministers of Ukraine
entry
5.1
5.2
5.3
5.4
5.5
1.
Triethanolamine (CAS 102-71-6,А46)
Resolution of the Cabinet of Ministers of Ukraine of January 28, 2004
1С350.46
2.
Night Vision Aviator GrassesKTR-3M
Resolution of the Cabinet of Ministers of Ukraine of January 28, 2004
6А002.с.1
3.
Dosimeter-radiometer Vykhor-5
Resolution of the Cabinet of Ministers of Ukraine of January 28, 2004
1A004.c
6. Dual use goods
which international transfers are intended to perform
(certain types of goods are marked with an asterisk in the list of goods that may be used in the creation of conventional types of weapons; military or special equipment specified in section A of part one of the list of goods that may be used in the creation of nuclear weapons; part one of the list of goods that may be used in the creation of chemical weapons; and part one of the list of goods that may be used in the creation of bacteriological (biological) and toxin weapons)
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Full name (description) of goods
UKTZED Code
Control
list
Resolution of the Cabinet of Ministers of Ukraine
entry
6.1
6.2
6.3
6.4
6.5
7. The goods that by their technical specifications, description, field of application and purpose do not correspond to the goods specified in the lists of goods which international transfers are subject to state export control.
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Full name (description) of goods
UKTZED Code
7.1
7.2
7.3
1.
Hose 237-88-67 OST1
2.
Button switch KE-011
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8. The list of countries to which it is intended to export or temporarily export the goods:
a) military-purpose goods – Republic of Poland (616),Republic of Bulgaria (100), Israel (376), United States of America (840),Republic of Moldova (498), Czech Republic (203), United Arab Emirates (784),Federal Republic of Nigeria (566), Slovak Republic (703), Turkey (792)
b) military-purpose goods that may be admitted in accordance with the established procedure
to civil use
c) military-purpose goods that are admitted in accordance with the established procedure
to civil use – Republic of Poland (616), Republic of Bulgaria (100), Israel (376), United States of America (840), Republic of Moldova (498), Czech Republic (203), United Arab Emirates (784), Federal Republic of Nigeria (566), Slovak Republic (703), Turkey (792).
d) dual use goods – Republic of Poland (616), Republic of Bulgaria (100), Israel (376), United States of America (840), Republic of Moldova (498), Czech Republic (203), United Arab Emirates (784), Federal Republic of Nigeria (566), Slovak Republic (703),Turkey (792)/
e) other goods – Islamic Republic of Afghanistan (004)
Notes: 1. These tables shall be filled by the business entity using a PC that independently determines the number of lines in each table depending on the commodity classification.
2. When completing the application, relevant application chapter may be deleted by the business entity, if no goods are available under this chapter.
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Surname Herashchenko
Name andpatronymic Natalia Viktorivna
Title Head of Export Control Department
Telephone (0672) 704-00-00 Fax (0672)703-00-00
Surname Stepanchenko
Name and patronymic Yurii Volodymyrovych
Title Director
Telephone (0672) 704-00-00 Fax (0672)703-00-00
Note: Every official (head of division or their deputy) is noted who is responsible at the company for export control matters.
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Surname Stepanchenko
Name and patronymic Yurii Volodymyrovych
Title Director
___________________________
(sample signature)
Telephone (0672) 704-00-00 Fax (0672)703-00-00
Note: The manager is specified and each of their deputies who are responsible at the company for export control matters.
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“I here by confirm that information in this application and in the documents submitted together with it is completely authentic.”
Surname Stepanchenko
Name and patronymic Yurii Volodymyrovych
_______________________
(signature) SEAL
Telephone (0672) 704-00-00 Fax (0672) 703-00-00
February __, 20___
A form of the letter of verification concerning the preliminary identification of goods attesting to matching (not matching) of names and descriptions of certain goods (groups of goods) specified in the application with the names and descriptions of goods included in the lists of goods which international transfers are subject to state export control is provided in Annex 3 to the Instruction on Registration with the State Service of Export Control of Ukraine of Ukrainian Business Entities as Entities that Carry out International Transfers of Goods approved by order of the State Service of Export Control of Ukraine of 04/27/2009 No. 31 (registered with the Ministry of Justice of Ukraine on 07/15/2009 at No. 637/16653).
Recommendations for completing the letter of verification concerning the preliminary identification of goods are provided in Annex 4 to the Instructions.
In accordance with law, the preliminary identification of goods shall be a responsibility of the business entity intending to carry out a foreign economic activity with the goods, which international transfers are subject to state export control.
As such, the State Service of Export Control of Ukraine performs a preliminary examination, as a result of which the business entity is registered as a business entity engaged in performing international transfers of goods and is issued a registration certificate and a relevant explanation concerning the identification of goods and the peculiarities and conditions for the performance of their international transfers.
Obtaining a conclusion of the State Service of Export Control of Ukraine for the right to conduct negotiations related to the entry into foreign economic agreements (contracts) on the export of goods.
In accordance with part two of Article 18 of the Law, the Cabinet of Ministers of Ukraine issued Resolution No. 500 of 06/06/2012, which approves the Procedure for Government Export Control over the Conduct of Negotiations Related to the Entry into Foreign Economic Agreements (Contracts) on the Export of Goods.
This Procedure establishes the manner of exercising state export control over the conduct by business entities of negotiations with foreign business or other entities in connection with entering into foreign economic agreements (contracts) on the export of military-purpose, dual-use and other goods that are not included in the lists of goods which are subject to state export control and in respect of which, in accordance with law, the state export control procedure is applied, to the foreign countries that are subject, in line with Ukraine’s international obligations, to an embargo on the export of goods.
In accordance with paragraph 4 of this Procedure, to inform business entities about the foreign countries that are subject to an embargo on the export of goods, the State Service of Export Control of Ukraine posts a list of such countries on its official website.
A condition for the business entity of Ukraine to obtain a conclusion entitling it to conduct negotiations shall be its registration, specifying the goods that are the subject of the foreign economic agreement, with the State Service of Export Control of Ukraine that is the central executive authority implementing the government policy in the area of government export control.
In accordance with Article 15 of the Law of Ukraine "On State Control of International Transfers of Military and Dual-Use Goods”:
“One-Time conclusion shall be issued to the entity engaged in the international transfers of goods for the conduct of negotiations related to the entry into specific foreign economic agreements (contracts) to carry out international transfers of goods or to carry out specific transfers of goods under the specified agreements (contracts) and shall be valid during the established term, such term not to exceed one year.
General authorization or conclusion may be issued to the entity engaged in international transfers of goods in cases where multiple negotiations are envisioned related to the entry into foreign economic agreements (contracts) or multiple transfers are envisioned to a specific end user under foreign economic agreements (contracts) entered into during the period of validity of the authorization or conclusion and are in effect during the established term, such term not to exceed three years.
Open authorization or conclusion may be issued to the entity engaged in international transfers of goods accordingly in the case where multiple negotiations are envisioned related to the entry into foreign economic agreements (contracts) or multiple transfers are envisioned to different consumers in a specific country of destination under agreements (contracts) entered into during the period of validity of such authorization or conclusion within the framework of the relevant international agreements or in the case of carrying out such transfers with the countries that are the participants in the international export control regimes or with respect to which the relevant government policy is implemented. Such authorization shall be valid during the established term, such term not to exceed three years.
To ensure a better quality of expert examinations performed by the State Service of Export Control of Ukraine, it is recommended additionally to provide commitments and guarantees of a foreign business entity that is the end user with regard to the imported goods. Such commitments and guarantees may be provided in the form of an end-user certificate, import certificate or other document containing:
- information about the end user of the goods, their exporter, importer and agents (where agents are used), the name and quantity of the goods, the end use of the goods and the place of use of the goods;
- the commitments of the foreign entity that is the end user not to re-export and not to transfer the goods to any person or confirming the fact that the goods are intended for own use of the end user not related to their re-export or transfer.
Where a foreign entity that is the end user intends to further re-export or transfer the obtained goods to another end user, the said document shall specify their commitments to perform such operations only subject to a written consent thereto by the exporter and the State Service of Export Control of Ukraine.
Below is a sample application for a conclusion of the State Service of Export Control of Ukraine to be granted the right to conduct negotiations related to the entry into foreign economic agreements (contracts).
Annex No. __ to Applicant’s Letter
Ref. No. _____________ of ____ 20__
Application No. _____________ of ____ ________ 20__
for a conclusion of the State Service of Export Control of Ukraine to be granted the right to conduct
negotiations in connection with entering into foreign economic agreements (contracts)
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2.Conclusion valid until ____ ______ 20 _
3. Applicant_________________________________________________________3.1. Identification code _____________
3.2.Location__________________________________________________________________________________
_______________________________________________________________________________________________________
3.3.Country_____________________________________________________________3.4.Country code_________________
3.5. Registration Certificate with the State Service of Export Control of Ukraine of the foreign economic entity as an entity engaged in performing international transfers of goods No. ___ of ___ _______ 20__.
3.6. The letter of explanation by the State Service of Export Control of Ukraine accompanying the Registration Certificate with the State Service of Export Control of Ukraine of the foreign economic entity as an entity engaged in performing international transfers of goods No. ___ of __________ 20__.
3.7.Resolution of the Cabinet of Ministers of Ukraine on granting authority No. _____ of ____ __________20__.
4. Foreign business entity_______________________________________________________________
(full name of foreign business entity that would participate in negotiations and sign the contract)
4.1.Location_________________________________________________________________________________
______________________________________________________________________________________________________
4.2.Country ___________________________________________________________4.3.Country code ________________
4.4.Decision of state bodies on granting authority No. _______________________ of____ _________ 20 __.
5. End user ___________________________________________________________________________________
(full name)
5.1.Location _________________________________________________________________________________
______________________________________________________________________________________________________
5.2.Country ___________________________________________________________5.3.Country code _________________
6. Agent__________________________________________________________________________________________
6.1.Location__________________________________________________________________________________
______________________________________________________________________________________________________
6.2.Country _____________________________________________________________ 6.3.Country code _______________
6.4.Decision of state bodies on granting authority No. of ____ __________ 20____.
7.Information about the goods that are the subject of negotiations:
7.1.
Name of the goods
7.2. UKTZED Code
7.3. Possible scope of supply
7.4. Entry the national lists
.5.Information about the degree of secrecy of the goods:
7.6.Availability of export documents approved in accordance with the established procedures:
8.Applicant’s commitments and guarantees:
8.1.All statements in this application and in the annexes thereto as well as in all the documents, which were submitted at the time of submitting this Application or will be submitted upon request of the State Service of Export Control of Ukraine are true and fully and correctly describe the essence of the future negotiations.
8.2The provisions of the Law of Ukraine "On State Control for International Transfer of Military and Dual-Use Goods” of 02/20/03 No. 549-ІV, including those concerning responsibility by the entities of Ukraine engaged in foreign economic activities for violations of export control legislation as well as the provisions of the Law of Ukraine “On State Secret” of 12/21/94 No.3855-ХІІ and requirements of regulations on the procedure for state control over the conduct of negotiations related to the entry into foreign economic agreements (contracts) on the performance of international transfers of military-purpose and dual-use goods and other regulations concerning international transfers of goods specified in the application will be taken into consideration in the course of conducting negotiations and entering into(signing) the foreign economic agreement (contract) and are well-known to us.
8.3.To notify the State Service of Export Control of Ukraine in writing of any changes to the data and information set out in this application and other documents submitted by me and, in the case of a positive conclusion, to be responsible for using it in accordance with legislation of Ukraine;
To conduct negotiations with the foreign business entity that has relevant authority granted by the state of incorporation of the entity and the country of destination of the goods;
To conduct negotiations in accordance with legislation on the protection of state secret;
To submit a report on the results of negotiations to the State Service of Export Control of Ukraine and a copy of the concluded agreement (contract).
9.Surname, name and patronymic of the officer responsible for export control at the applicant’s (enterprise, organization, institution):
10.Surname, name, and patronymic of applicant (enterprise, organization, institution):
Title
Title
Tel.:
Tel.:
Fax:
Fax:
Signature:
Signature SEAL
Date
Date
Below is the form of conclusion entitling the business entity to conduct negotiations.
APPROVED
Order of the State
Service of Export Control of Ukraine
10/05/2009 No. 86
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State Service of Export Control of Ukraine
This conclusion grants the applicant the right to conduct negotiations related to entering into foreign economic agreements (contracts)on exporting military-purpose and dual-use goods. Validity of this conclusion may be stopped or the State Service of Export Control of Ukraine may cancel this conclusion in the cases provided by law.
1. Report No.
2.Conclusion valid:
3.Conclusion type:
4. Applicant:
4.1.EDRPOU Code
4.2. Location:
4.3.Country:
4.4.Country code
5. Exporter:
5.1.EDRPOU Code
5.2.Location:
5.3.Country(ies):
5.4.Country code(s)
6. Importer:
6.1.Location:
6.2.Country(ies):
6.3.Country code(s)
7. User:
7.1.Location:
7.2.Country(ies):
7.3.Country code(s)
8. Content of the conclusion:
8.1.Additional conditions:
9.Particular conditions of using the conclusion and additional information:
10. Title, surname and initials of the person signing the conclusion:
__________________________ SEAL Date
What documents one needs to obtain from the state service of export control of Ukraine to export, import, temporarily export, temporarily import and transit the goods which international transfers are subject to export control
Authorization documents certify the fact of entitling the business entity to perform the relevant international transfer of goods. They are issued by the State Service of Export Control of Ukraine in the form of one-time, general or open-ended authorizations or conclusions.
The authorization of the State Service of Export Control of Ukraine
The authorization of the State Service of Export Control of Ukraine certifies the fact of granting the business entity the right to export or import the goods specified in it.
An authorization may be one-time, general or open-ended.
a) One-time authorization
A one-time authorization is a document verifying the right to perform the export or import of goods specified in it under foreign economic agreements (contracts), which is valid during the term specified in it. This term may not be longer than one year. However, it can be extended by the State Service of Export Control of Ukraine following a justified application of the business entity for no more than the term of validity of the foreign economic agreement (contract).
b) General authorization
A general authorization is a document certifying the right of the business entity to export or import the goods specified in it to the end users specified in such authorization. A general authorization shall be valid during the term specified in it, not exceeding three years.
A particular feature of a general authorization is the fact that it entitles its holder to enter into foreign economic agreements (contracts) when the holder is using it, therefore it does not have information about the quantity and value of the goods specified in it, neither does it have information about the details of agreements (contracts).
c) Open-ended authorization
An open-ended authorization is a document verifying the right of the business entity to perform an operation of export or import of goods to any end users in a specific country of destination of the goods. An open-ended authorization shall be valid during the term specified in it, not to exceed three years.
A particular feature of an open-ended authorization is the fact that it entitles its holder to enter into foreign economic agreements (contracts) on supplying goods to any end users in the specified state when the holder is using it, therefore it does not have information about the quantity and value of the goods specified in it, neither does it have information about the end users and the details of foreign economic agreements (contracts).
Conclusion of the State Service of Export Control of Ukraine
A conclusion of the State Service of Export Control of Ukraine verifies the fact of granting the business entity the right:
- to temporarily import/export or transit the military-purpose goods specified in it and certain categories of dual-use goods, or
- to conduct negotiations related to the entry into foreign economic agreements (contracts) on international transfers of “sensitive” goods to the states subject to an embargo on supplies of such goods.
Both an authorization and a conclusion may be one-time, general or open-ended.
a) One-time conclusion
A one-time conclusion is a document verifying the right to perform a one-time import/export of the military-purpose goods specified in it as well as of certain categories of dual-use goods under foreign economic agreements (contracts) or the conduct of negotiations related to the entry into such agreements (contacts).
b) General conclusion
A general conclusion is a document verifying the right to perform a temporary export (import) of the military-purpose goods specified in it as well as some categories of dual-use goods to the end users specified in it.
Advantage: general conclusions entitle the business entity to perform a prompt import/export of the necessary quantity of goods for the end users specified in them or (in the case of negotiations) to achieve a significant shortening of the time required to enter into foreign economic agreements (contracts).
c) Open-ended conclusion
An open-ended conclusion is a document verifying the right of the business entity to perform an operation of temporary export or import of the goods specified in it to any end users of a specific country of destination of the goods.
An open-ended conclusion is the ground to perform a temporary import/export of goods or to conduct negotiations related to the entry into foreign economic agreements (contracts) concerning such goods during the term specified in it, the term not to exceed three years.
Advantage: Open-ended conclusions entitle the business entity to perform a prompt import/export of the necessary quantity of goods for any end users in a specific state or (in the case of negotiations) to achieve a significant shortening of the time required to enter into foreign economic agreements (contracts).
The procedure for completing applications for authorization documents of the State Service of Export Control of Ukraine is mentioned in the relevant paragraphs (2.1-2.8 and 3) of the Instructions on the Procedure for Completing Applications for Authorization Documents, Guarantee and Other Documents, Guarantee Documents and Other Documents that are Issued by the State Service of Export Control of Ukraine.
Below is the model and procedure for drawing up an application for an authorization to export goods.
Annex to paragraphs 2.1, 2.2, 2.3, 2.4, 2.5, 2.6, 2.7, and 2.8 of the Instructions on the Procedure
for Completing Applications for Authorization Documents that are Issued by the
State Service of Export Control of Ukraine
Annex No._1 to Applicant’s Letter, Ref. No. __1111_of______ 05, 20__
Below is the model and procedure for drawing up an application for an authorization to import goods.
Annex to paragraphs 2.1, 2.2, 2.3, 2.4, 2.5, 2.6, 2.7, and 2.8 of the Instructions on the Procedure for Completing Applications for Authorization Documents that are Issued by the State Service of Export Control of Ukraine Annex No._1 to Applicant’s Letter, Ref. No. __1111__ of 09/07/20__
Below is the model and procedure for the drawing up of the application for a conclusion to perform a temporary export/import of the goods.
Annex to paragraphs 2.1, 2.2, 2.3, 2.4, 2.5, 2.6, 2.7, and 2.8 of the Instructions on the Procedure for Completing Applications for Authorization Documents that are Issued by the State Service of Export Control of Ukraine Annex No. _1_ to Applicant’s Letter, Ref. No. ___44________________ of 06/12/20__
Below is the model and procedure for drawing up an application for a conclusion to transit goods.
Annex to the Instructions on the Procedure for Completing Applications for Authorization Documents Issued by the State Service of Export Control of Ukraine Annex No. __ to Applicant’s Letter, Ref. No. __________ of ____ ______20__.
Application No. 1/1 of 04/ 10/20__
for a conclusion of the
State Service of Export Control of Ukraine
for the transit of goods across the territory of Ukraine
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_
2. Applicant: MASH Closed Joint-Stock Company
_____________________________________________________________________________________________
2.1. Location: Villkäpa 33,11913 Tallinn
_____________________________________________________________________________________________
2.2. Country Republic of Estonia ___ 2.3. Country code_____112______________
3. Exporter: MASH ClosedJoint-Stock Company ________________________________
_____________________________________________________________________________________________
3.1. Location: Villkäpa 33,11913 Tallinn
_____________________________________________________________________________________________
3.2. Country Republic ofEstonia 3.3.Country code 112______________________
3.4. Export license No. BY01111111111111_________________of 09/07/20___
4. Importer: ARMS LIMITED_______________________________________
______________________________________________________________________________4.1.Location: 232, Ymraniye, Belim 44/5, city of Istanbul__ _______________________________________________________________
4.2. Country Turkey_________________________ 4.3.Country code _792_______
5. End user: Ministry of Defense of Turkey
6. 5.1. Location Mil Zone, city of Istanbul____________________________
_____________________________________________________________________________________________
5.2. Country Turkey ______ 5.3. Country code 792______________________
6.Name and full description of the goods
7.UKTZED Code
8.Unit of measure
9.Quantity
Shershen-DM motorized anti-tank missile systembased on a Spartan-type armored vehicle
9301200000
796.
2
Shershen-ST motorized anti-tank missile systembased on a Spartan-type armored vehicle
9301200000
796.
5
10 Customs offices:
10.1. Incoming customs office notspecified ______________________________ 10.2. Code ___________________
10.3. Outgoing customs office notspecified ______________________________ 10.4. Code ___________________
11 Guarantees and obligations
11.1. All statements in this application, including thecharacteristics of the goods and all documents submitted in support of thisapplication are correct and fully and accurately disclose all transit terms.
11.2. I am aware of and fully take into consideration theprovisions of the Law of Ukraine "On State Control for InternationalTransfer of Military and Dual-Use Goods” of 02/20/03 No. 549-ІV, includingthose concerning responsibility of the entities engaged in foreign economicactivity of Ukraine for violations of requirements of legislation in thefield of export control and other normative documents concerning transit ofthe goods specified in the application.
11.3. I shall notify the State Service of Export Control of Ukraine in a timely manner of any changes to the items on this application and the attached documents as well as of other changes in the terms and intentions, irrespective of whether the application has been or will be considered. If a conclusion is issued, I shall be responsible for its safekeeping and using in accordance with legislation of Ukraine.
11.4.* I am aware of the procedurefor levying and the amount of the fee for the issuance of documents in thefield of export control that I undertake to comply with fully and in a timelymanner.
12. Surname, name and patronymic of the officer responsible for export control at the applicant’s (enterprise, organization, institution):
Valerii Likhachev
13. Surname, name, and patronymicof applicant (enterprise, organization, institution):
Oleh Sannikov
Title: Deputy Director
Title: Director
Telephone: ___________
Telephone: _______________
Fax: ______________
Fax: _________________
Signature:
Signature: SEAL
Date: 04/10/20__
Date: 04/10/20__
Note: The item marked with an asterisk (*) shall be completed only by Ukrainian applicants.
DOCUMENTS ON GUARANTEES OF END USE OF THE GOODS FOR THE DECLARED PURPOSES.
To ensure the observance of requirements of legislation in the field of state export control and to prevent unauthorized re-export of the imported goods or their transfer to third parties, the business entity engaged in international transfers of goods should take measures to secure original copies of the documents from the foreign business entity (where the goods are exported) or provide the foreign business entity (where military-purpose and dual-use goods are imported) with the original copies of documents containing commitments and guarantees of the end-use of the goods verifying the declared purposes of the use of the goods by the above business entities.
Such documents are provided in the form of the end-user certificate, an international import certificate or other document containing the following:
- information about the end user of the goods, their exporter, the name and quantity of the goods, the end use of the goods and the place of use of the goods;
- the obligation of the end user concerning the fact that the goods are intended for own needs of the end user that are not related to their re-export or transfer to any other persons or if the end user intends to further re-export or transfer the obtained goods to another end user, the said document shall specify their obligation to perform such transactions only subject to a written consent thereto by the exporter and the export control authority of the exporter's state.
International import certificate shall mean a document issued by the specifically authorized state body of the importer's state verifying importer’s obligation to import the goods to their country and, if the goods should not be imported to it, not to send them to another destination without permission of the said state body;
Delivery confirmation certificate shall mean a document issued by the specifically authorized state body of the importer's state verifying the fact that the goods specified in it have been delivered to that state;
End-user certificate shall mean a document whereby the end user recognizes the place and purpose of the end use (installation) of the goods and guarantees that the goods will not be used for other purposes than those specified in the certificate, will not be transferred to another user in the territory of the destination country or re-exported without permission of the appropriate state authority and also undertakes other guarantees (commitments) regarding the imported goods envisioned by the terms of the foreign economic agreement (contract) or the requirements of the goods exporter's state.
The end-user certificate is the first and foremost guarantee document that is formalized by the end user of the goods and provided to the exporter of the goods.
Below is the form of the end-user certificate that is an attachment to the Regulation on the Procedure for the Issuance of Guarantees and Exercising State Control over Performance of Commitments to Use the Goods Subject to State Export Control for the Declared Purposes approved by Resolution of the Cabinet of Ministers of Ukraine of May 27, 1999, No. 920.
END USER CERTIFICATE N __________________
1. User's full name and address
2. Exporter, its address
3. Name and full description of the goods
4. Place of installation (use) of the goods
5. The purpose of end-use of the goods
6. The user of the goods warrants by this, that the goods stated in item 3, will not be used other, than for purposes stated in item 5, and will not be transferred to any other subject of business activity in the territory of Ukraine or re-exported without a permission of the State Service on Export Control of Ukraine.
7. Other guaranties and obligations stipulated by conditions of the external economic contract
____________ _____________ ____________
title signature name
_________
date
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End User Certificate is drawn upon the letterhead of the consumer's company,institution or organization.
In accordance with the procedure established by the above Regulation, the end-user certificate shall be formalized by the business entity of Ukraine who would be the end-user of the goods imported to Ukraine on the letterhead of this business entity.
Business entity of Ukraine that is the end user shall provide information in the end-user certificate about the end user of the goods (the name of the end user and its address), the exporter of the goods (the name of the exporter and its address), the name and quantity of the goods, the place of installation (use) and the objective of the end use of the goods. The business entity of Ukraine shall guarantee that the goods will not be used other than for the purposes stated in the certificate and will not be transferred to any other business entity in the territory of Ukraine or re-exported without permission of the State Service of Export Control of Ukraine and also undertake other guarantees regarding the goods imported to Ukraine, if it is envisioned by the terms of the foreign economic agreement (contract) in accordance with the requirements of the goods exporter's state.
Legislation of Ukraine in the field of state export control provides that Ukraine’s state guarantees verifying Ukrainian importer’s commitments to import the goods to Ukraine and, if the goods are not imported into Ukraine, not to divert them to another destination without permission of the State Service of Export Control of Ukraine, shall be formalized in the form of an international import certificate of Ukraine and other state guarantees or commitments concerning the use of the imported goods for the declared purposes.
Below is the form of the international import certificate that is an attachment to the Regulation on the Procedure for the Issuance of Guarantees and Exercising State Control over Performance of Commitments to Use the Goods Subject to State Export Control for the Declared Purposes approved by Resolution of the Cabinet of Ministers of Ukraine of May 27, 1999, No. 920.
To obtain the import certificate or other document, the Ukrainian importer shall send a letter to the State Service of Export Control of Ukraine with a brief description of the purpose of application, attached to which must be:
· a standard-form application;
· a duly authenticated copy of the foreign economic agreement (contract) for the import of the goods and a copy of the importer’s contract with the end user, where the importer is an agent company or organization;
· a copy of the end-user certificate;
· a duly authenticated copy of a license to perform operations with the imported goods, if operations with these goods are subject to licensing.
Below is the form of the application for an international import certificate that is an annex to the Instructions on the Procedure for Completing Applications for Authorization Documents, Guarantee and Other Documents issued by the State Service of Export Control of Ukraine approved by Order of the State Service of Export Control of Ukraine of January 9, 2004, No. 5 registered with the Ministry of Justice of Ukraine on January 21, 2004, No. 90/8689.
Annex No. __ to Applicant’s Letter, Ref. No. ______ of __________ 20__
Application No. _____________ of __________ 20__
for issuing an International Import Certificate
Formalizing a delivery confirmation certificate.
The authorized state body of the exporter’s country and the foreign business entity who is an exporter of the goods may check the performance of commitments and guarantees of the Ukrainian party concerning the imported goods by requesting a state document – the delivery confirmation certificate verifying the fact that the goods specified in it have been imported to Ukraine and placed under the export control regime of Ukraine.
To obtain a delivery confirmation certificate, the importer within 10 days of the customs clearance of the goods shall send a letter to the SFS with a brief statement of the purpose of the application. Attached to this letter shall be:
- a duly authenticated copy of the customs cargo declaration issued by the relevant customs authority at the time of bringing the goods to Ukraine;
- a duly authenticated copy of the import certificate or other document issued by the State Service of Export Control of Ukraine;
- a copy of the money transfer order for payment of a fee for the issuance of the delivery confirmation certificate (now delivery confirmation certificates are formalized and issued by the SFS free of charge).
The application shall reference the number and date of the customs cargo declaration, the import certificate or other document in accordance with which a delivery confirmation certificate will be issued as well as the information required to complete it.
Below is the form of the delivery confirmation certificate that is an annex to the Regulation on the Procedure for the Issuance of Guarantees and Exercising State Control over Performance of Commitments to Use the Goods Subject to State Export Control for the Declared Purposes approved by Resolution of the Cabinet of Ministers of Ukraine of May 27, 1999, No. 920.
BUSINESS ENTITIES’ SUBMITTING REPORTING MATERIALS TO THE STATE SERVICE OF EXPORT CONTROL OF UKRAINE.
Reports by the entities that carry out international transfers of goods is one of the key elements of export control, which is a part of post licensing activities.
Following the reports by the business entities engaged in international transfers of goods, the filing is ensured of the international reports of Ukraine as a participant in international non-proliferation organizations.
The report on the results of conducting negotiations in connection with entering into foreign economic agreements (contracts).
The report shall be submitted to the State Service of Export Control of Ukraine by the business entity that received the relevant conclusion to conduct negotiation within three months of the expiry of the term of the conclusion. This shall be done in any event, irrespective of whether or not the negotiations occurred and whether their result was positive.
The report shall be filed in a free format on a company letterhead. The report shall contain the following:
1) date and number of conclusion of the State Service of Export Control of Ukraine entitling its holder to conduct negotiations;
2) date and place of the negotiation;
3) list of all the parties who participated in the negotiation;
4) names of all business entities that participate in the international transfers of goods;
5) subject of the negotiation (the name of the goods);
6) numbers of the foreign economic agreements (contracts) entered into;
7) terms of the goods supply;
8) information about approvals of the requirements concerning the provision of guarantee documents and the documents verifying the delivery of the goods depending on their category;
9) other information that is material to deciding on the subject of negotiation as well as information concerning the compliance with paragraph 8.1 “Additional Terms” of Information Field 8 “Content of the Conclusion” and Information Field 9 “Special Terms of Using the Conclusion and Additional Information” of the relevant conclusion regarding the possibility of conducting the negotiation related to the entering into foreign economic agreements (contracts) on exports of goods.
The report on the actually performed export/import of goods pursuant to the issued authorization.
Following the results of using the obtained authorizations to export and import goods, two types of reports shall be submitted (each report to be filed with a separate cover letter):
▪ report on the actually performed (not performed, partly performed) international transfers of goods;
▪ report on using (not using, partly using) the goods for the declared purposes.
In a report on the actually performed (not performed, partly performed) international transfer of goods, the following information shall be submitted for a one-time authorization:
▪ name of the goods;
▪ quantity of the goods or (provided/received services), in the case of a partial use – the quantity of the goods is indicated, which transfer was performed, as well as the balance of the goods;
value in the currency specified in the authorization document;
▪ date of customs clearance, number of the customs declaration or (the date of the report on provided/received services or performed works);
▪ means of transport that was used for transportation (for air transportation, the air carrier) shall be specified only for exports;
▪ number and date of the delivery confirmation certificate (in the cases provided by law).
The report on using (not using, partly using) the goods for the declared purposes
In any event, in the course of using a one-time authorization, the report on using (not using, partly using) the goods for the declared purposes shall be provided only once within three month of the expiration date of the authorization.
It shall have the following information:
- name and quantity of the goods (in full concordance with the name of the goods in the authorization document);
- quantity of the actually supplied/received goods;
- the declared end use of the goods;
- the actual end use of the goods.
Annex 2 Useful links and used sources
USEFUL LINKS
https://customs.gov.ua/en/ Website of the State Customs Service of Ukraine
https://zakon.rada.gov.ua/laws/main/index Main page of the "Legislation of Ukraine" section
https://dsecu.gov.ua – website of the State Service of Export Control of Ukraine
USED SOURCES
International agreements
Customs Convention on the International Carriage of Goods Using the TIR Carnet (TIR Convention) of 1975 (Ukrainian/Russian) UN; Convention, Model, Rules [...] dated 14.11.1975// Official Newsletter of Ukraine dated 26.01.2007 — 2007, No. 3, p. 259
ICAO Convention on the Unification of Certain Rules of International Air Transportation (Ukrainian/Russian); Convention, International Document dated 28/05/1999 // Official Newsletter of Ukraine dated 15/05/2009 — 2009, No. 33, / No. 100, 2008, Article 3295 /, p. 169
United Nations Convention on the Carriage of Goods by Sea, 1978 (Hamburg Rules) [Electronic resource]. – Mode of access: https://zakon.cc/law/document/read/995_391
Agreement on International Railway Freight Communications (SMGS) [Electronic resource]. – Mode of access: https://zakon.cc/law/document/read/998_011
Laws of Ukraine
Customs Code of Ukraine dated March 13, 2012 No. 4495 VI // Bulletin of the Verkhovna Rada of Ukraine. — 2012 — No. 44-48. - Art. 552
Tax Code of Ukraine // Bulletin of the Verkhovna Rada of Ukraine. — 2011. – No. 13-14, No. 15-16, No. 17 Art. 112
On the Customs Tariff of Ukraine: Law of Ukraine dated 04.06.2020 No. 674-IX // Bulletin of the Verkhovna Rada (VVR) - 2020 - No. 42, Article 344
On the Customs Tariff of Ukraine: Law of Ukraine dated October 19, 2022 No. 2697-IX // Voice of Ukraine dated November 24, 2022 — No. 239
On the Protection of the National Product Producer from Dumping Imports Law of Ukraine dated 22/12/1998 No. 330-XIV // Government Courier dated 18/02/1999
Decrees of the President of Ukraine
Decree of the President of Ukraine on the Interdepartmental Commission on Military-Technical Cooperation Policy and Export Control; Regulations, Composition of the collegial body dated March 5, 2007 No. 180/2007 // Government Courier dated March 28, 2007 — No. 55
Decrees of the Cabinet of Ministers of Ukraine
On the approval of provisions on the State Tax Service of Ukraine and the State Customs Service of Ukraine: Resolution of the Cabinet of Ministers of Ukraine; Regulation of 06/03/2019 No. 227 // Government Courier of 20/03/2019 — No. 54
On approval of the list of checkpoints across the state border through which military goods and nuclear materials are moved: Decree of the Cabinet of Ministers of Ukraine; List dated November 17, 2010 No. 1057 // Government Courier dated November 24, 2010 — No. 220
The issue of passage across the state border of persons, automobile, water, rail and air vehicles of carriers and goods moved by them, Decree of the Cabinet of Ministers of Ukraine; Scheme, Form of a standard document, Declaration, List dated 21/05/2012 No. 451 // Government Courier dated 30/05/2012 — No. 95
On approval of the Procedure for customs clearance of military equipment, including military vehicles crossing the customs border of Ukraine; Order, Assignment, List dated January 18, 2003 No. 63 // Official Newsletter of Ukraine dated February 7, 2003 — 2003, No. 4, p. 280
Some issues related to the application of customs declarations of certain types, Decree of the Cabinet of Ministers of Ukraine; Provisions, Structure, Form of a standard document, Application, Form dated August 5, 2020 No. 681 // Government Courier dated August 7, 2020 — No. 151
Issues related to the application of customs declarations Decree of the Cabinet of Ministers of Ukraine; Regulations, Standard document form, Application, Register, Form, List dated 05/21/2012 No. 450 // Government Courier dated 30/05/2012 — No. 95
On approval of the composition of the Interdepartmental Commission on International Trade; Composition of the collegial body dated April 18, 2012 No. 310 // Government courier dated April 24, 2012 — No. 74.
On the approval of the Regulation on the procedure for providing guarantees and exercising state control over the fulfillment of obligations regarding the use for declared purposes of goods subject to state export control; Regulations, Form of a standard document dated 27/05/1999 No. 920 // Official Gazette of Ukraine dated 18/06/1999 — 1999, No. 22, p. 97
Orders of central executive bodies
On the beginning of implementation by customs offices as separate units of the State Customs Service of Ukraine of the functions and powers assigned to them for the implementation of state customs policy, state policy in the field of combating offenses during the application of customs legislation: Order of the State Customs Service of Ukraine dated June 30, 2021 No. 472 [Electronic resource]. – Access mode: https://customs.gov.ua/en/documents/pro-pochatok-zdiisnennia-mitnitsiami-iak-vidokremlenimi-pidrozdilami-derzhavnoyi-mitnoyi-sluzhbi-ukrayini-pokladenikh-na-nikh-funktsii-i- povnovazhen-234
On the approval of the Procedure for filling out a customs declaration for the written declaration of goods moving across the customs border of Ukraine by citizens for personal, family and other needs not related to the conduct of business activities, Ministry of Finance of Ukraine; Order, Procedure dated May 28, 2012 No. 614 // Official Newsletter of Ukraine dated July 20, 2012 — 2012, No. 52, p. 165
On the approval of the Procedure for performing customs formalities during customs clearance of goods using a customs declaration on the form of a single administrative document of the Ministry of Finance of Ukraine; Order, Procedure, Form [...] dated 30.05.2012 No. 631 //Official Newsletter of Ukraine dated 31.08.2012 — 2012, No. 64, p. 63
On the approval of the Procedure for the use in customs bodies of permits and conclusions of the State Service of Export Control of Ukraine and their electronic copies: Ministry of Finance of Ukraine; Order, Procedure dated May 30, 2012 No. 649 // Official Newsletter of Ukraine dated August 27, 2012 — 2012, No. 63, p. 164
On the approval of the Procedure for filling out customs declarations in the form of a single administrative document: Ministry of Finance of Ukraine; Order, Procedure, List dated 30.05.2012 No. 651 // Official Newsletter of Ukraine dated 31.08.2012 — 2012, No. 64, p. 94
On the fulfillment of customs formalities in accordance with the declared customs regime of the Ministry of Finance of Ukraine; Order, Procedure, Instruction [...] dated 31.05.2012 No. 657 // Official Newsletter of Ukraine dated 29.10.2012 — 2012, No. 80, p. 66
On the approval of departmental classifiers of information on state customs affairs, which are used in the process of registration of customs declarations, Ministry of Finance of Ukraine; Order, Classifier dated September 20, 2012 No. 1011 // [Electronic resource]. – Access mode: https://zakon.rada.gov.ua/rada/show/v1011201-12#Text
On the approval of the Procedure for performing customs formalities on sea and river transport of the Ministry of Finance of Ukraine; Order, Order, Form of standard document dated 03/10/2015 No. 308 // Official Newsletter of Ukraine dated 26/05/2015 — 2015, No. 39, p. 111
On the approval of the Procedure for the work of customs authorities in resolving issues of classification of goods moving across the customs border of Ukraine, Ministry of Finance of Ukraine; Order, Procedure, Form [...] dated 30/05/2012 No. 650 // Official Newsletter of Ukraine dated 31/08/2012 — 2012, No. 64, p. 80
On the approval of the Procedure for Issuing a Certificate of Admission of a Road Vehicle to the Transportation of Goods Under Customs Seals and Stamps, Ministry of Finance of Ukraine; Order, Procedure, Journal [...] dated 09.10.2012 No. 1064 // Official Newsletter of Ukraine dated 26.11.2012 — 2012, No. 88, p. 66
On the approval of the Procedure for the interaction of structural subdivisions and territorial bodies of the State Fiscal Service of Ukraine with the Specialized Laboratory for Expertise and Research of the State Fiscal Service during the conduct of research (analyses, expertise), Normative standards for taking samples of goods for research (expertise), forms of the act on taking samples of goods and the conclusion, Ministry of Finance of Ukraine; Order, Procedure, Request [...] dated 02.12.2016 No. 1058 // Official Newsletter of Ukraine dated 13.01.2017 — 2017, No. 4, p. 714, Article 164
On the approval of the Aviation Rules of Ukraine "Procedure and conditions of air transportation of dangerous goods" State Aviation Service of Ukraine; Order, Rules, Classification [...] dated November 12, 2020 No. 1802 //Official Newsletter of Ukraine dated January 29, 2021—2021, No. 7, p. 462
On approval of the Procedure for risk analysis and assessment, development and implementation of risk management measures to determine the forms and scope of customs control, Ministry of Finance of Ukraine; Order, Procedure, Passport [...] dated 31.07.2015 No. 684 // Official Newsletter of Ukraine dated 11.09.2015 — 2015, No. 70, p. 60
On the approval of the Procedure for filling out and issuing a certificate of transportation (origin) of goods EUR.1 or EUR-MED, Ministry of Finance of Ukraine; Order, Procedure, Declaration [...] dated 02.03.2021 No. 139 // Official Newsletter of Ukraine dated 02.04.2021 — 2021, No. 25, p. 216
Editions and publications
SCIENTIFIC AND PRACTICAL COMMENTARY ON THE LAW OF UKRAINE "ON STATE CONTROL OVER INTERNATIONAL TRANSFER OF MILITARY AND DUAL-USE GOODS" // EDITED BY DMITRIEV A.I. -k.: KVITS, 2015, - 368 p.
The working group:
Kartvelishvili Vakhtang
Sokhadze Irakli
Amonishvili Maya
Marshania Zurab
Chkhaidze Ia
REPUBLIC OF GEORGIA
Section 1 A brief overview of international and national legislation
1.1 Brief overview of the international and national legal framework
The international regulatory framework for export controls includes: International bilateral and multilateral treaties and agreements; United Nations resolutions and sanctions; Informal multilateral non-proliferation agreements (so-called regimes).
International Agreements and Treaties
Treaty on the Non-Proliferation of Nuclear Weapons (NPT)[28]
[28] https://www.un.org/disarmament/wmd/nuclear/npt/
The Treaty on the Non-Proliferation of Nuclear Weapons, adopted by the UN General Assembly by resolution 2373 (XXII) of June 12, 1969, entered into force in 1970. Georgia joined the Treaty on the Non-Proliferation of Nuclear Weapons on March 7, 1994. It is an international treaty aimed at preventing the proliferation of nuclear weapons and technologies, promoting cooperation in the peaceful uses of nuclear energy and achieving the goal of nuclear disarmament and general and complete disarmament.
According to the agreement:
Each nuclear-weapon state party is under an obligation not to transfer, directly or indirectly, nuclear weapons and other nuclear explosive devices, and to control, directly or indirectly such weapons and explosive devices; It also has a duty not to assist or encourage any non-nuclear-weapon State to manufacture, acquire or control nuclear weapons.
Non-nuclear-weapon States Parties undertake not to acquire, directly or indirectly, nuclear weapons and explosive devices, and to control, directly or indirectly such weapons and explosive devices; Do not acquire or manufacture nuclear weapons or other nuclear explosive devices, or acquire or receive any assistance in the production of nuclear weapons or nuclear explosive devices.
Non-nuclear-weapon states are committed to obtaining assurances from the International Atomic Energy Agency (IAEA) that nuclear energy will only be used for peaceful purposes and not to develop nuclear weapons or other nuclear explosive devices.
States parties undertake not to transfer primary or special fissile material or equipment or material specially designed or prepared for the processing, use or production of fissile material to any non-nuclear-weapon state for peaceful purposes, unless International Atomic Energy Agency safeguards apply to these primary or special fissile materials.
The treaty recognizes the right of all states parties to develop research, production and use of nuclear energy for peaceful purposes without any discrimination and to enable all states to cooperate in the use of peaceful nuclear energy;
All state parties involved undertake to negotiate in good faith on effective measures, which will help to end competition in the field of nuclear weapons and will contribute to nuclear disarmament, as well as general and complete disarmament.
The treaty states that a nuclear-weapon state is a state that created and detonated a nuclear weapon or other nuclear explosive device before January 1, 1967. These countries are: USA, Russia, UK, France and China. Currently, 191 countries of the world have joined the treaty.
Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on their Destruction (OPCW)[29]
[29] https://www.opcw.org/chemical-weapons-convention
Chemical Weapons Convention. It is an arms control agreement that prohibits the production, stockpiling and use of chemical weapons. The Convention entered into force on April 29, 1997. 193 countries are parties to the Chemical Weapons Convention. Since November 27, 1995, Georgia has been a party to the Convention on the prohibition of the creation, production, storage and use of chemical weapons and on the destruction of stockpiles.
The Organization for the Prohibition of Chemical Weapons (hereinafter referred to as the Organization) carries out the implementation of the goals and provisions of the Convention, control over the countries' compliance with the requirements of the Convention, dialogue and consultations between states, and inspection of military industrial facilities of the member states. According to the Chemical Weapons Convention:
1. Each state party to the convention has undertaken an obligation that will never, under any circumstances.
- Develop, manufacture, purchase, stockpile or store chemical weapons, and transfer directly or indirectly chemical weapons to anyone;
- Use chemical weapons;
- Conduct military training in the use of chemical weapons;
- Help or encourage anyone to participate in any activity prohibited by a State Party under this Convention;
2. Each state party is under an obligation to destroy chemical weapons that it possesses or that are under its jurisdiction or control;
3. Each state party is under an obligation to destroy chemical weapons that it has left behind on the territory of another member state;
4. Each state party is under an obligation to destroy any chemical weapons production facility owned, possessed or owned or located anywhere under its jurisdiction or control;
5. Each state party undertakes not to use chemical weapons in the conduct of hostilities.
The convention also provides:
- Mutual assistance of countries and cooperation with the organization in the event of the use of chemical weapons;
- Inspection of chemical plants by an organization where the creation of chemical weapons is possible;
- International cooperation in the peaceful use of chemicals in relevant fields.
The chemicals listed in the annexes to the Convention that can be used for the manufacture of chemical weapons are divided into categories:
Annex 1- includes chemicals that were manufactured, assembled or used as chemical weapons and that pose high threats (for example, lewisite agents, mustard gas, ricin, saxitoxin and all nerve agents). States are prohibited from having more than 1 ton of these substances, and more than 100 grams of such a substance must be declared to the organization. These substances have a very limited range of use for peaceful purposes. For example, nitrogen mustard is used to treat certain forms of cancer.
Annex 2- includes chemicals that can be used as precursors for List 1 chemicals, posing significant risks to the implementation of the objectives and key principles of the convention. The production of these chemicals must be declared to the organization. Export of these chemicals to non-member countries is prohibited. For example, Thiodiglycol is typically not suitable for human consumption or for therapeutic use, but may be used for industrial or research purposes or as an ink solvent.
Annex 3- includes chemical substances that contain some dangerous threats. These chemicals are widely used in the chemical industry and can be produced in large quantities for commercial purposes if they are not prohibited by the Convention. Information on plants producing more than 30 tons of such chemicals is provided to the organization that has the right to inspect them. Export of these substances to non-member countries is restricted. Such substances are, for example, phosgene, which is used in the production of many organic compounds, and Triethanolamine, which is used in the production of detergents.
Substances included in the Annexes to the Convention on the Prohibition of Chemical Weapons are included in the national control lists of military and dual-use goods in Georgia and are subject to permits control during import, export and transit.
The Convention on the Prohibition of the Development, Production and Stockpiling of Bacteriological (Biological) and Toxin Weapons and on their Destruction (BTWC)[30]
[30] https://www.un.org/disarmament/biological-weapons/
The Biological Weapons Convention entered into force on March 26, 1975. Currently, the Convention has 183 member states and 4 signatory countries. It was ratified by the Parliament of Georgia by Resolution No. 132 of March 6, 1996, and on May 22, 1996, Georgia joined the Convention.
The convention effectively prohibits the development, production, acquisition, transfer, stockpiling and use of biological and toxic weapons.
Each State Party to this Convention undertakes:
- Never, under any circumstances, handle, produce, accumulate, acquire or otherwise store:
§ Microbiological or other biological agents or toxins, regardless of the method of their production, the type and quantity that does not have a preventive, protective or other peacekeeping purpose;
§ Weapons, equipment or delivery systems designed to use and deliver such agents or toxins for hostile purposes or in armed conflict.
- To destroy or convert to peaceful purposes all agents, toxins, weapons, equipment and vehicles specified in Article 1 of the Convention, which it possesses or which are under its jurisdiction or control. All necessary precautions to protect the public and the environment must be taken in accordance with the provisions of this article;
- Not to transfer to any person who should directly or indirectly in any way help, force or incite any state or group of states or an international organization to produce or otherwise acquire any agents, toxins specified in Article 1 of the Convention, weapons, devices. or delivery vehicle.
- To take the necessary measures, in accordance with their constitutional procedures, to prohibit or prevent the processing, production, accumulation, acquisition or storage of agents, toxins, weapons, equipment and delivery systems specified in Article 1 of the Convention on the territory of such a state or any other place under its jurisdiction or control;
- Consult and cooperate with each other in resolving any issues that may arise in connection with the purpose of the Convention or in connection with the implementation of the provision. Consultation and cooperation on the implementation of this Article may also be carried out through the use of appropriate procedures within the United Nations and in accordance with its Statute;
The Hague Code of Conduct against Ballistic Missile Proliferation (HCOC)[31]
[31] https://www.hcoc.at/?tab=what_is_hcoc&page=text_of_the_hcoc
https://www.un.org/ru/documents/decl_conv/conventions/hague_code.shtml
https://www.nti.org/learn/treaties-and-regimes/hague-code-conduct-against-ballistic-missile-proliferation-hcoc/
The Hague Code of Conduct was adopted on 25 November 2020 as a mechanism to prevent the proliferation of ballistic missiles. It is the only legally binding document governing ballistic missile proliferation control. Currently, 143 countries have signed the Hague Code of Conduct. The Hague Code of Conduct sets out the following general measures for state parties:
a) ratify, accede to or otherwise protect:
- Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies (1967),- Convention on International Liability for Damage caused by Space Objects (1972) and
- Convention on Registration of Objects Launched into Outer Space (1975);
b) To contain and prevent the proliferation of ballistic missiles capable of providing weapons of mass destruction on a global and regional scale through multilateral, bilateral and national efforts;
c) Exercise the utmost restraint in the development, testing and deployment of ballistic missiles capable of carrying weapons of mass destruction, including, where possible, reducing national stocks of such missiles in the interests of global and regional peace and security;
d) Exercise the necessary vigilance when considering cooperation in the implementation of rocket and space programs in any other country in order to prevent complicity in the development
(promotion) of delivery systems for weapons of mass destruction, given that such programs can be used to conceal a ballistic missile program;
e) Not to assist or facilitate the implementation of any type of ballistic missile program in countries that may develop or purchase weapons of mass destruction in violation of the norms and obligations of international disarmament and non-proliferation treaties.
The Arms Trade Treaty (ATT)[32]
The Arms Trade Agreement (ATT) was adopted by a resolution of the UN General Assembly on April 2, 2013 and entered into force on December 24, 2014. To date, the treaty has 113-member states and 31 signatory countries that have not yet ratified it. The Arms Trade Agreement in Georgia was ratified by Resolution N4696 of the Parliament of Georgia dated December 23, 2015 and entered into force on August 21, 2016.
The Arms Trade Treaty (ATT) obliges member states to control arms exports, not violate arms embargoes, and ensure that arms are not ultimately used for human rights violations and terrorism.
The aim of the agreement is to establish the highest possible common international standard for the international trade in conventional arms, eliminate illegal trade and remittances in order to maintain peace, security and stability and reduce human suffering.
In addition, the ATT recommends that states apply the provisions of the Agreement to the widest possible range of conventional weapons.
For the purposes of the Agreement, international trade includes export, import, transit, transshipment and brokerage services (translations).
The Arms Trade Treaty includes:
a. Battle tanks
b. Combat armored vehicles
c. Large caliber artillery systems;
d. Fighter jets;
e. Combat helicopters;
f. Military ships;
g. Rockets and missile launchers;
h. Small and light weapons.
ATT obliges Member States to:
- Create and use a national control system and a national control list, for the effective implementation of the provisions of this Treaty.
- Establish and implement a national control system in order to regulate the export of ammunition and to apply the export control provisions specified in this treaty in the process of issuing a permit for the export of ammunition;
-Establish and implement a national system for the control of parts and components of conventional weapons during their export in such a way as to exclude the possibility of weapons assembly and apply the export control provisions specified in this treaty when issuing an export permit for such items.
[32] https://www.un.org/disarmament/convarms/att/
In accordance with Article 6 of the Treaty, the member state does not allow the transfer of conventional weapons, ammunition, parts and components if:
- Such a transfer violates the measures introduced by the UN Security Council in accordance with Chapter VII of the UN, in particular the state’s obligations with respect to the arms embargoes and international treaties relating to the transfer and illicit trafficking of weapons.
- There is credible information that these weapons and ammunition will be used in acts of genocide, crimes against humanity, and to commit acts that violate the Geneva Convention of 1949, as part of an attack on civilians and civilian objects or other war crimes.
- If export is prohibited under this treaty, each exporting member state, prior to issuing a permit, shall assess whether conventional weapons intended for export contribute to or damage peace or security and/or are used for such activities that are considered a crime in accordance with international humanitarian law, international human rights law, conventions and protocols on terrorism, transnational and organized crime, etc.
-In addition, the exporting state should take into account the risk of the possible use of conventional weapons, ammunition, parts and components for gender-based violence or violence against women and children.
In accordance with the treaty, each member state takes the necessary measures to regulate, where necessary and within its jurisdiction, the import, transit and transshipment of conventional weapons and brokerage services.
Association Agreement on the one hand between the European Union and the European Atomic Energy Union and their Member States and on the other hand Georgia
On 25 November 2013, Georgia signed one of the most important international agreements in its history - "Association Agreement on the one hand between the European Union and the European Atomic Energy Union and their Member States and on the other hand Georgia," (ratified by the Ordinance of Parliament of Georgia No 2495-RS of 18 July 2014), which restated its commitment "to cooperate and contribute to the fight against the proliferation of weapons of mass destruction and their delivery systems by means of the following actions:
- Taking steps to sign, ratify, or accede to, as appropriate, and fully implement all other relevant international instruments; and
- Establishing an effective system of national export controls, controlling the export as well as transit of WMD-related goods, including a WMD end-use control on dual-use technologies, and containing effective sanctions for breaches of export controls" (Association Agreement, Section II, Article 10).
United Nations Resolutions and Sanctions[33]
UNSCR 1540
[33] https://matsne.gov.ge/document/view/2496959?publication=0
http://www.parliament.ge/ge/ajax/downloadFile/34754/AA_ENG
https://www.un.org/en/sc/1540/faq.shtml
https://www.un.org/disarmament/wmd/sc1540/
In accordance with the UN Charter VII, the UN Security Council Resolution 1540 (2004, UNSCR 1540) has been adopted at the 4956th session on 28 April 2004. The resolution emphasized that nuclear, chemical and biological weapons and their means of delivery pose a threat to international peace and security, and all countries of the world must be involved in the fight against this threat.
UNSCR 1540 (2004) discusses the threats posed by non-state actors trying to develop, acquire, produce or transport nuclear, chemical and biological weapons and means of their delivery, and emphasizes that every state should refrain from assisting such organizations by any means to prevent their involvement in such activities.
UNSCR 1540 (2004) states that each country must adopt and efficiently implement appropriate legislation that prohibits any non-state actors from acquiring, owning, developing, transporting or using nuclear, chemical and biological weapons and means of their delivery, particularly for terrorist activities. It also prohibits countries from trying to participate in any of the above actions as mediators, supporters or financiers.
UNSCR 1540 calls on each country to take and use efficient measures to prevent the proliferation of nuclear, chemical and biological weapons and means of their transportation and related materials by introducing national control measures, and for this purpose:
a) Develop and implement necessary efficient measures for accounting and storing such materials used in the production, use or transportation;
b) Develop and implement necessary efficient measures of physical protection;
c) Develop and implement effective measures necessary for border control and law enforcement in accordance with national legislation and international law for identifying and suppressing illicit trafficking, as well as for identifying intermediaries and preventing them, including through international cooperation, if necessary;
d) Establish, improve, revise and maintain necessary efficient control over such goods for export and cross-border movement at the national level, including laws and regulations governing export, transit, trans-shipment and re-export, as well as controls regarding the provision of services such as financing and transportation for export and cross-border movement, which will facilitate distribution as well as control over the end user; apply necessary measures of criminal and civil liability for the violation of the aforementioned laws and other regulations in the field of export controls. In addition, the resolution recognizes the practical relevance of the control lists for achieving its goals and urges all member states to develop such lists as soon as possible.
The Resolution calls on states to:
- Promote multilateral agreements, to which they are parties, in order to fully implement them and strengthen them if necessary for the purpose of preventing the proliferation of nuclear, chemical or biological weapons;
- Adopt rules and regulations to enforce the obligations of the key multilateral non-proliferation agreements at the national level, where this has not already been done;
- Develop necessary methods for informing industrial and public circles about the duties defined by such legislation.
In addition, the Resolution defines the following terms:
Delivery systems - missiles and other unmanned systems that can carry nuclear, chemical or biological weapons designed specifically for such application.
Non-state actor- a natural or legal person who does not have legal authority from any state to carry out actions in accordance with the resolution.
Materials related to nuclear, chemical and biological weapons and their delivery systems - materials, equipment and technologies covered by relevant multilateral agreements and treaties or included in national control lists and can be used to design, build, manufacture and use nuclear, chemical and chemical weapons or biological weapons.
UNSCR 2231 (2015) -Sanctions against Iran
On December 23, 2006, the UN Security Council unanimously adopted Resolution 1737, which prohibits the supply of nuclear and missile materials and technologies to Iran and requires all countries to freeze the financial statements of individuals and legal entities listed in the annex to the resolution. At the same time, it calls on Iran to suspend uranium enrichment and heavy water production.
On July 20, 2015, following the signing of the Joint Comprehensive Action Plan (JCPOA) by Iran with the six leading countries and the High Representative of the European Union (Group E3 / EC + 3), the UN Security Council adopted Resolution 2231 (2015), which defined this plan and significantly weakened the sanctions imposed by the previous resolution, but certain restrictions on the supply of materials and technologies for Iran's nuclear and missile programs were maintained. The fulfillment of restrictions is mandatory for all states, including Georgia.
The JCPOA, adopted by the Islamic Republic of Iran and the E3/EC+3 Group (China, France, Germany, the Russian Federation, United Kingdom, United States and EU high representative for foreign affairs and security policy), reflects a gradual approach and includes mutual commitment of the parties. The implementation of the JCPOA guarantees bringing the Iranian nuclear program to a peaceful course and, as a result, will lead to lifting sanctions imposed by the UN Security Council against Iran as well as multilateral and national sanctions.
According to this plan, Iran will never try to develop or acquire any nuclear weapons, to upgrade existing facilities (to turn the Fordow nuclear fuel enrichment plant and the ARK heavy water research reactor into research facilities and produce medical radioisotopes and industrial equipment), and work closely with the International Atomic Energy Agency (IAEA), and others. The E3/EC+3 countries are required to lift the sanctions related to finance, banking and insurance, oil, gas and petro chemistry, maritime, transport and other areas imposed on Iran because of its nuclear program. UNSCR 2231 (2015) supported this plan and determined the responsibilities of "all states" in annex B to the resolution on the implementation of the JCPOA.
UN Security Council Resolution 2231 (2015) endorsed the plan and set out in annex B to the resolution the commitment of “all states” to implement the JCPOA.[34]
Paragraph 2 of Annex B to Resolution 2231 (2015) defines the types of nuclear activities in which all States can participate, provided they obtain the prior consent of the Security Council for each specific operation;
Paragraph 2 of Annex B to Resolution 2231 (2015) defines the list and conditions of entities specified in information circulars INFCIRC 254/Rev.13/Part1[35] and INFCIRC/ 254 / Rev.10 /
[34] https://www.un.org/securitycouncil/content/un-sc-consolidated-list
https://undocs.org/en/S/2015/546
[35] https://www.undocs.org/S/RES/2231(2015)
Part2[36], in case of compliance with which the supply, sale or transfer the items mentioned to Iran does not require the prior consent of the Security Council;
Resolution 2231 (2015) approved the creation of a special “procurement channel”[37] in accordance with the JCPOA, which would ensure the transfer of items, materials, equipment, goods and technology required for Iran's nuclear activates under the JCPOA.
Resolution 2231 (2015) calls on Iran not to participate in activities related to the development of WMD delivery systems (ballistic missile) for 8 years from the date of its adoption by the JCPOA or until the corresponding report by the International Atomic Energy Agency and establishes the obligations of countries to supply goods and technologies associated with the creation of such systems.
In accordance with paragraph 4 of annex B to resolution 2231 (2015), all states may supply Iran by any means with the products and technologies listed in document S/2015/546[38], or other items, materials, goods and technologies that may be used to create delivery systems for weapons of mass destruction and provide Iran with any technical, professional and financial assistance and brokerage services, or grant Iran the right to conduct commercial activities on its territory with the prior approval of the Security Council.
In accordance with Paragraph 4 of UNSCR 2231 (2015), if prior consent is obtained from the Security Council, each state can participate in the following activities: Using its own ships or aircraft either from its territory or through its own citizens, directly or indirectly sell or transfer warships, missiles or missile systems, or any battle tanks, military vehicles, large-caliber artillery systems, armored vehicles and artillery units (as set forth in the General Register of UN Regulations) for use in the interests of Iran or for Iran, including spare parts or technical and financial support and other services. This limitation applies for 5 years from the date of adoption of the JCPOA or until the submission of the corresponding report by the International Atomic Energy Agency.
UNSCR 2231 (2015) (6 (c)) also imposes sanctions on individuals and legal entities involved in developing Iran's nuclear program or participating in developing nuclear weapons and means of their delivery, encouraging all countries to freeze their financial and economic assets to prevent the transfer of such resources in any way and take all measures to prevent the transit or entry of these persons to their territory[39].
However, this “Black list” is variable, since, according to a resolution, the Security Council has the right to add or remove a person from the list.
On May 8, 2018, President Trump announced his withdrawal from the JCPOA as he had evidence that Iran was still developing nuclear weapons, thereby violating the Joint Comprehensive Plan of Action, and in November reinstated sanctions against Iran and countries trading with Iran.
On May 8, 2019, Iran announced that it would exceed the amount stipulated in the contract for the supply of low-enriched uranium (300 kg), and on July 7, 2019 announced that it would enrich uranium to above 3.67%.
[36] https://www.iaea.org/sites/default/files/publications/documents/infcircs/1978/infcirc254r13p1.pdf
[37] https://www.iaea.org/sites/default/files/publications/documents/infcircs/1978/infcirc254r10p2.pdf
[38]https://www.un.org/securitycouncil/content/2231/nuclear-related-transfers-and-activities-procurement-channel
[39] https://www.un.org/securitycouncil/content/un-sc-consolidated-list
The fate of the nuclear deal with Iran is still unclear today. President Biden said the United States would return to an agreement if Iran adheres to its JCPOA commitments and wants to negotiate a broader agreement that includes Iran's missile program, in response to which Iranian leader Ebrahim Raisi has called for an agreement and is not going to discuss extended agreement.
In a speech to the UN Security Council in late June 2021, Secretary General Antonio Guterres called on the Biden administration to lift sanctions against Iran in accordance with resolution 2231 (2015) and return Iran to its obligations to the UN Security Council. He also that the JCPOA is the best guarantee that Iran's nuclear program will not go beyond the framework of a peaceful settlement.
UN resolution S/RES/1718 and sanctions against North Korea[40]
In 2006, in response to North Korea's nuclear test, UN resolution S/RES/1718[41] introduced economic sanctions against North Korea for the first time.
With the adoption of Resolution S/RES/1718, the United Nations urged North Korea to stop nuclear testing and ordered all countries to take measures to prevent direct or indirect delivery of the following items, which could be carried out from their territory either through their own citizens or using their ships and aircraft:
- Military equipment, large-caliber artillery systems, rockets and missile systems, related materials, including spare parts and other items pointed out by the Security Council 1718 Sanctions Committee;
- Materials, goods, equipment and technologies listed in S/2006/814[42] (list of nuclear materials, equipment and technologies), S/2006/815[43] (list of materials, equipment, goods and technologies related to the ballistic missile program) and S/2006/816[44] (list of materials, goods, equipment and technologies related to chemical and biological weapons of mass destruction), or those items that can be used to create nuclear or other types of WMD and ballistic missiles;
- luxury items;
UNSCRS/RES/1718 prohibits North Korea from exporting the above-mentioned goods and buying these goods by any means. All countries are obliged to prevent the transfer of technologies associated with the creation of weapons of mass destruction and provision of any services, including those associated with such activities, and to freeze the monetary and other financial assets and economic resources of North Korea and its citizens.
In 2009, the Security Council adopted UNSCRS/RES/1874 (2009), which strengthened the arms embargo and called on all states to check their airports and ports, as well as open waters, air and sea transport carrying goods for North Korea, and to seize and destroy them, if this cargo if this cargo is possibly related to the North Korean nuclear program.
In January 2013, in response to the launch of the Kwangmyongsong-3 satellite and the DPRK's third nuclear explosion, UN Security Council Resolutions 2087 (2013) and 2094 (2013) were adopted, which tightened the sanctions imposed by previous resolutions limiting remittances to the DPRK from international financial systems.
[40] https://www.un.org/securitycouncil/sanctions/1718
[41] https://www.undocs.org/S/RES/1718%20(2006)
[42] https://undocs.org/S/2006/814
[43] https://undocs.org/S/2006/815
[44] http://undocs.org/S/2006/816
In 2016, in response to the fourth nuclear explosion, the Security Council adopted UNSCR 2270 (2016), which banned the export of gold, vanadium, titanium and rare metals from the DPRK to the UN member states, as well as the export of North Korean coal and iron, except when it is necessary for the adoption of livelihood for Korea. The export of copper, zinc, nickel and silver was prohibited in accordance with UNSCR 2321 (2016).
Security Council Resolution 2371 of August 2017 completely banned the export of coal, iron, lead and seafood from Korea, imposed new restrictions on the Central Securities Depository's foreign trade bank, and banned an increase in the number of North Korean workers in other countries.
Resolution 2375 (2017) banned the import of oil and oil products by UN member states to the KSDR, the establishment of joint ventures with Korean capital, as well as the export of textiles and gas condensate from Korea to UN member states. This decree prohibited the citizens of the DPKR from working in other countries.
In accordance with UNSCR 2397 (2017), adopted in December 2017, the Security Council has tightened measures regarding the supply of any oil products to the DPRK, including the sale or transfer of diesel and oil. The resolution establishes a quota for oil and gas products (500,000 barrels within 12 months from 1 January 2018) and crude oil (4 million barrels or 525,000 tons within 12 months from 22 December 2017) and defines the obligations of countries to carry out such operations.
UNSCR 2397 (2017) also expanded industry sanctions, banning thereby the export of food and agricultural products, machinery, electrical equipment, soil and stone, including magnetite and magnesia, lumber and fishing vessels. The Resolution also prohibits the transfer of fishing rights to the DPRK.
UNSCR 2397 (2017) prohibits the supply of all industrial equipment, automobiles, iron, steel and other metals, with the exception of the delivery, sale or transfer of necessary spare parts of commercial passenger aircraft in operation by the DPRK.
UNSCR 2397 (2017) tightens measures to prevent granting labor rights to DPRK citizens and obliges UN member states to repatriate within 24 months the DPRK state labor protection attaches and citizens who receive income on their territory.
It also tightens measures against the illegal export of coal and other illegal goods from the DPKR to the sea and the smuggling of oil into the DPKR by sea, and obliges countries to detain and inspect any vessel engaged in prohibited activities in its ports and territorial waters.
Non-Proliferation Regimes
Nuclear Suppliers Group (NSG)[45]
[45] http://www.nuclearsuppliersgroup.org/en/
http://www.nuclearsuppliersgroup.org/en/about-nsg/nsg-faq
This is a group of countries with nuclear weapons. They seek to promote the non-proliferation of nuclear weapons by controlling the materials, equipment and technology that can be used to create nuclear weapons. The Nuclear Suppliers Group was formed in 1975 in response to India's nuclear weapons testing in 1974, using plutonium created in a Canadian nuclear reactor fueled by American heavy water. The Indian "nuclear explosion" showed that nuclear materials and technologies acquired for peaceful purposes could be used to create nuclear weapons.
Today NSG unites 48 countries. To become a member of the NSG, a country must satisfy the following criteria:
- Be able to supply products listed in the guidelines of the Nuclear Suppliers Group;
- Observe guideline principles;
- Create a legal framework for export controls, which will comply with the guidelines;
- Comply with the Treaty on the Non-Proliferation of Nuclear Weapons, Pelandaba, Rarotonga, Tlatelolco, Bangkok, Semipalatinsk or other equivalent international agreements (one or more) and fully implement such agreements (treaties);
- Support international efforts to prevent the proliferation of weapons of mass destruction and their delivery systems.
The Nuclear Suppliers Group has developed guidelines consisting of Part 1 and Part 2, setting forth rules for the transfer of nuclear materials and dual-use items for peaceful purposes so that such transfers do not lead to the creation of weapons of mass destruction.
In 1978, the International Atomic Energy Agency published Part 1 of the guidelines as a document IAEA INFCIRC/254.
Part 1 of the guidelines of the Nuclear Suppliers Group regulates the export of items specifically designed or prepared for use in the nuclear field, such as: nuclear materials, nuclear reactors and related equipment, non-nuclear materials for reactors, equipment and apparatus for the development, enrichment and storage of nuclear materials, also production of nuclear fuel and heavy water; and the technology and software associated with each of the aforementioned.
These elements are known as "elements of the trigger list".
Part 2 of the guidelines of the Nuclear Suppliers Group regulates the export of items related to the creation of nuclear weapons, items that can play an important role in the nuclear fuel cycle (production cycle, including all stages of extracting fuel from radioactive waste), and these items can have non-nuclear application. For example, used in industry. Such items are known as "dual-use items".
Part 2 of the guidelines of the Nuclear Suppliers Group (guidelines for dual-use items), was created in 1991-1992 after it became clear that the existing export control rules could not prevent one of the states parties to the Non-Proliferation Treaty form implementing an underground nuclear weapons program, which in turn led to further UN actions. A significant part of the ground-based nuclear weapons program included the purchase of dual-use items and their use to create elements of the "triggers list."
In 1992, the International Atomic Energy Agency published Part 2 of the guidelines as an information circular of the IAEA INFCIRC / 254, part 2.
Missile Technology Control Regime (MTCR)[46]
[46] http://mtcr.info/
The Missile Technology Control Regime (MTCR) is an informal and voluntary association of countries that have come together to prevent the proliferation of weapons of mass destruction. The MTCR was founded in 1987 by Canada, France, Germany, Italy, Japan, the United Kingdom and the United States. Since then, the countries participating in the MTCR have grown to 35, and each country has equal rights under this regime.
The MTCR was created to counter the growing threat of weapons of mass destruction, especially nuclear, biological and chemical weapons. If follows the general export policy guidelines, which are used with respect to the common list of controlled goods (Annex to the management of missile technology, which includes equipment, software and technology).
The MTCR does not make collective export licensing decisions. Instead, each country assumes the responsibility to protect the "guidelines" in accordance with national laws and practices. All decisions of the MTCR are based on general consensus, and partner countries regularly update information on national export licensing policies in the context of the overall objectives of the regime.
The Missile Technology Control Regime, which includes hardware, software and technology, consists of Category I and Category II equipment, which includes a wide range of military and dual-use equipment and technologies related to the design, production and operation of missiles. The application is periodically updated to clarify and account for today's rapidly developing technologies.
More stringent restrictions apply to the category I technical unit. These include advanced missile systems (including ballistic missiles, rocket launchers and sound rockets, cruise missiles, radio-controlled airplanes, target and reconnaissance airplanes) capable of delivering at least 500 kg payload to a range of at least 300 km.
Technical units of "Category II" include integrated missile systems (including ballistic missiles, rocket launchers and sound rocket, cruise missiles, radio-controlled airplanes, target and reconnaissance airplanes) able to fly at a maximum range of 300 km and not included in "Category I".
Technical units of "Category II" include a wide range of equipment, materials and technologies, most of which have a purpose different from the system of delivery of weapons of mass destruction. Regime member countries have an easier approach to "Category II" technical units, however, according to the agreement, the transfer of such units is limited.
The decision to admit a new member is taken by the partner countries unanimously on the basis of consensus. The decision takes into account the extent to which the country adheres to the principles of non-proliferation, whether it has an effective export control system that implements the guidelines and procedures of the regime at the national level.
In order to facilitate the implementation of export controls over missile technologies, systems, equipment, materials and components, MTCR has developed a Handbook, which explains what are MTCR controlled items and technologies, where are they used, how do they work, how they look, etc. The Handbook is quite extensive and contains technologies that are especially important in the design and manufacture of transport equipment[47].
[47] http://mtcr.info/wordpress/wp-content/uploads/2017/10/MTCR-Handbook-2017-INDEXED-FINAL-Digital.pdf)
Australia group (AG)[48]
[48] https://australiagroup.net/en/index.html
The Australia Group (AG) is an informal association of countries whose activities are aimed at minimizing risks of the spread of chemical and biological weapons (CB weapons), as well as the delivery of various types of materials by exporting countries or countries through which territories these materials are supplied.
The main objectives of the AG member states are to establish more stringent control measures so that the export licensing system can control the use of certain categories of chemicals and, biological agents, technologies and dual-use items that can be used for the production and distribution of chemical and biological weapons.
All countries participating in the Australia Group are also members of the Chemical Weapons Convention (CWC) and Biological Weapons Convention (BWC) and support international efforts to protect the world from the proliferation of CB weapons.
Today, there are 43 countries in the Australia group and the European Commission, and Kazakhstan is awaiting membership. In early 1984, an investigation team discovered the use of chemical weapons in Iraq during the Iran-Iraq war, which contradicted the 1925 Geneva Protocol. Iraq was also found to have purchased chemicals and related materials needed for the production of chemical weapons through legitimate trade channels.
A set of control systems have been introduced in some countries in this regard to control the export of chemicals and materials that can be used to manufacture chemical weapons. Nevertheless, controls imposed by individual countries proved ineffective, and it became clear that stakeholders were trying to avoid these systems.
In connection with this situation, Australia invited the countries on whose territory export control is carried out to develop and harmonize the rules of national export licenses and improve the effectiveness of cooperation in this area.
The first meeting of these countries, the union of which was later called the Australia Group, was held in Brussels in June 1985. The fourteen countries that participated in this meeting and the European Commission agreed on the need to explore new export monitoring opportunities and ways of increasing their efficiency with regard to the non-proliferation of chemical weapons.
In the 1990s, due to the exposed facts of the use of dual-use items imported for random purposes, which were instead used for biological weapon programs, the AG countries imposed restrictions on the exports of certain biological agents. New technologies and equipment that can be used to manufacture or use chemical or biological weapons were added to the control lists of substances and materials developed by AG to restrict exports.
Currently, all states parties are taking certain measures to restrict the export of 65 types of chemicals that can be used as a source of chemical weapons. Mandatory export licenses are applied in the following areas:
- Chemical production facilities and dual-use equipment and related technologies;
- Plant pathogens;
- Animal pathogens;
- Biological agents; and
- Dual-use biological facilities.
These points are the basis of a common AG control list, which is compiled as a result of consultations between member states and is periodically adjusted to ensure improved efficiency. AG member states call on all countries to take the necessary measures to prevent the participation of enterprises located on their territories in the production of chemical and biological weapons.
In addition, although the guidelines of the Australian Group are consistent and comply with the requirements of the conventions on the prohibition of chemical and biological weapons, the implementation of these provisions is also mandatory for all other states to ensure compliance with the requirements of UNSCR 1540 (2004).
Wassenar Agreement WA[49]
[49] https://www.wassenaar.org/
On December 19, 1995, the Wassenaar Agreement (WA) was established by a decision taken at the high-level meeting in Wassenaar (a village near The Hague, Netherlands), which became known after the announcement at the Peace Palace in The Hague. The Wassenaar Agreement was founded to protect regional and international security and stability by increasing transparency and high accountability for the transfer of conventional weapons and dual-use products and technologies, thereby preventing dangerous accumulation and seizure of weapons and technology by terrorists. Today, the Wassenaar Arrangement is made up of 42 countries that make decisions based on general consensus. The language of the WA is English.
The basis of the WA and the obligations of its member states with respect to the control of conventional arms and dual-use goods and technologies are determined by the following document "Guidelines & Procedures, including the Initial Elements"[50].
WA control lists consist of two parts
- A list of dual-use items and technologies that can be used to create weapons and military equipment (the Basic List), which is divided into two parts - a Sensitive List and a Very Sensitive List of items and technologies[51];
- Munitions List[52].
The basic list includes 9 categories of products and technologies: Special materials and related equipment; material processing; electronics; computers; telecommunications and information security; sensors and lasers; navigation and avionics; marine; aerospace and propulsion.
A new member to the Wassenaar Arrangement is to be admitted with the consent of all member states by consensus.
To become a WA member, a country must engage in the production of military items and industrial equipment used to create military products or export such products, and also must recognize non-proliferation policies, including the NSG, MTCR, AG, NPT, CWC, BWC and other rules and must have an efficient export control system.
1.2. Legal framework of Georgia
Georgia's legal framework governing export controls at the national level reflects Georgia's international non-proliferation obligations, guidelines for multilateral export control regimes, and includes an EU dual-use items control list.
Control of dual-use items in Georgia is governed by the following normative acts:
- International treaties and agreements;
- Law of Georgia "On the control of military and dual use items"
- Law of Georgia "On licenses and permits";
- Law of Georgia "On license and permit fees";
- Customs Code of Georgia;
- Criminal Code of Georgia;
- General Administrative Code of Georgia;
- Ordinance No 394 of the government of Georgia of 13 June 2014"On the approval of the military and dual-use items control lists";
- Ordinance of Government of Georgia No 372 of 9 June 2014 "On the determination of control measures for military and dual use items";
- Order of the minister of finance of Georgia No 292 of 30 September 2014 "On the adoption of a correlation table of dual use items control list with national commodity nomenclature of foreign economic affairs";
- Order of the minister of finance of Georgia No 291 of 30 September 2014 "On the adoption of rules of issuing permits on export, import and transit of dual-use items, license forms and license application forms";
[50] https://www.wassenaar.org/docs/IE96.html
[51] https://www.wassenaar.org/app/uploads/2018/01/WA-DOC-17-PUB-006-Public-Docs-Vol.II-2017-List-of-DU-Goods-and-Technologies-and-Munitions-List.pdf
[52] https://www.wassenaar.org/app/uploads/2017/12/Stand_Alone_Munitions_List_WA_2017.pdf
- Order of the minister of defense of Georgia No 65 of 29 August 2014 "On the approval of the statute of the standing commission of the ministry of defense working on the military and technical issues";
- Order of the Ministry of Finance of Georgia No. 257 of 29 August 2019 “On approval of instructions for the movement and customs clearance of goods in the customs territory of Georgia”.
- Ordinance No. 487 dated December 21, 2011 of the Government of Georgia “On the establishment of the Government Commission for the implementation of the UN Security Council Resolutions”.
Law of Georgia "On the control of military and dual use items"[53]
This Law regulates the principles and rules for the implementation of national control and policy regarding the circulation of military and dual-use items.
The law defines the types of activities that require a dual-use items permit:
- Types of permits;
- Permit issuing authority;
- Conditions for issuing a permit;
- General rules for obtaining a permit;
- Obligations of the permit seeker;
- The terms of the permit;
- Rights and obligations of licensing authority.
Law of Georgia "On Licenses and Permits”[54]
This is a state regulation of activities or actions by means of licenses or permits that shall be carried out only if these activities or actions are directly related to an increased danger for human life or health or to the areas of state or public interest or are associated with the use of public resources. State regulations are carried out only if by issuing a license or permit, it is really possible to reduce this danger or meet the state or public interest. This law also defines an exhaustive list of applicable licenses and permits in Georgia, determines the rules for issuing licenses and permits, amendments to them and their cancellation, persons exempted from the liability of obtaining a permit.
Paragraphs 27, 271, 272, 273 and 274 of Article 24 of the law define the types of permits for import, export, transit, technical assistance and brokering services of dual-use items.
Measures related to the issuance of these permits are governed by this law and the law of Georgia "On the control of military and dual use items" in accordance with paragraph 23 of Article 1 of this Law.
Law of Georgia "on License and Permit Fees"[55]
The law determines the types and rates of fees charged by the state for the implementation and / or use of licensed / permitted types of activities established by law, as well as the rules and conditions for their payment for certain services provided by the state body. According to paragraph 13 (c) of Article 7 of the law, the fee for obtaining permit to import or export, re-export, transit and technical assistance of dual-use goods is GEL 30, while - for obtaining a permit for brokerage services – GEL 700.
[53] https://matsne.gov.ge/document/view/2113659?publication=1
[54] https://matsne.gov.ge/ka/document/view/26824?publication=78
[55] https://matsne.gov.ge/ka/document/view/12880?publication=67
Criminal Code of Georgia[56]
The Criminal Code of Georgia establishes the grounds for criminal liability, determines what action is criminal, and establishes appropriate punishment or other kinds of criminal prosecution.
The purpose of this code is to prevent crime and observe law. In particular, the code determines the size of coercive measures in relation to illicit trafficking of dual-use goods:
In accordance with Article 214 (4) of the code, the illicit transfer of toxic, poisonous, radioactive materials, explosives and explosive materials, firearms, other materials or equipment that can be used to create weapons of mass destruction and strategically important raw materials, is punishable with imprisonment from five to eight years, and
In accordance with Article 232, the production of nuclear weapons or other nuclear explosive devices is punishable by seven to ten years of imprisonment;
In accordance with Article 235 of the code, the illegal transfer of weapons of mass destruction and their delivery systems, weapons and armament, technologies of creating military equipment, scientific and technical information or services that are under special export control regimes is punishable by a fine or imprisonment from three to five years.
In accordance with Article 2351 the illegal production, purchase, storage, disposal, use, processing, examination, transfer, transportation, export, import, trade or other illegal handling of toxic chemicals or their precursors, as defined in the Chemical Weapons Convention, and other related illegal transactions, including violation of Georgia's obligations under international agreements and treaties, shall be punished by imprisonment for a term of five to 10 years.
General Administrative Code of Georgia[57]
The code establishes procedures for issuing and executing administrative-legal acts, considering administrative complaints and applications, and introducing rules for preparing, concluding and executing administrative transactions.
Any person has the right to apply to the Customs Department of the Revenue Service and request information on the goods subject to restrictions/prohibitions on the export, import and transit of these goods.
General rules for filing and administrative proceedings, the timing of decision-making, etc. are defined by Chapter VI of the code.
Law of Georgia "On Assistance in the Prevention of Money Laundering and Financing of Terrorism"
The purpose of the law is to create an effective legal mechanism to prevent, detect and suppress money laundering and terrorist financing in Georgia, as well as to finance the proliferation of weapons of mass destruction.
The law defines the rights and obligations of the Governmental Commission for the Implementation of UN Security Council Resolutions, which is the main contact point in Georgia
[56] https://matsne.gov.ge/ka/document/view/16270?publication=30
https://matsne.gov.ge/ka/document/view/16426?publication=208
[57] https://matsne.gov.ge/ka/document/view/16270?publication=32
for the UN Sanctions Committee and other state bodies for the prevention, detection and suppression of the financing of terrorism and proliferation of weapons of mass destruction.
In accordance with Article 41 of this law and Chapter VII of the UN Charter on combating the financing of terrorism and the proliferation of weapons of mass destruction, a changes in the list of persons subject to the sanctions of the UN Security Council (including either the exclusion of a person from this list or a data clarification) shall take effect immediately from the moment of publication on the official website of the UN Sanctions Committee.
For the purposes of the law, the customs authority controls the import or export of cash or securities to Georgia if the amount of cash or securities exceeds GEL 30,000 or the equivalent of GEL 30,000 in foreign currency in accordance with paragraph 7 of Article 11 of the Law.
Ordinance No 394 of the government of Georgia of 13 June 2014 on "approval of the military and dual-use items control lists[58]
This ordinance approves:
a) The list of military items (Annex 1), which is similar to the common military control list of the European Union of 11 March 2013, and
b) The list of dual-use items (Annex 2), which fully corresponds to the EU dual-use items control list adopted by Regulation (ЕС) No 428/2009.
The national dual-use items control list includes control lists developed by international non-proliferation regimes (Wassenaar Arrangement (WA), Missile Technology Control Group (MTCG), Nuclear Suppliers Group (NSG), Australia Group (AG), and the Chemical Weapons Convention CWC).
Ordinance of the government of Georgia No 372 of 9 June 2014 "On the determination of control measures for military and dual use items"[59]
This ordinance defines:
- The main criteria the standing commission on military-technical issues of the Ministry of Defense of Georgia is to consider when making decisions;
- List of documents submitted for obtaining a permit;
- Grounds for issuing and denying or suspending and cancelling a permit;
- Conditions for exemption from the obligation to obtain a permit;
- Rules and forms for issuing an end-user certificate;
- Issues of inter-agency coordination;
- Methods and rules for monitoring compliance with the terms of the permit by the licensing authority.
[58] https://matsne.gov.ge/document/view/2372203?publication=0
[59] https://matsne.gov.ge/document/view/2368509?publication=0
Order of the Minister of Finance of Georgia No 292 of 30 September 2014 "On the adoption of a correlation table of dual use items control list with national commodity nomenclature of foreign economic affairs"[60]
The correlation table has been developed on the basis of "National Commodity Nomenclature for Foreign Economic Affairs", approved by the first Article of the Minister's Order No. 275 of November 18, 2020.
on the basis of the Order No 292 of 30 September 2014 of the Minister of Finance of Georgia "On the adoption of a correlation table of dual use items control list with national commodity nomenclature of foreign economic affairs".
The list was developed to simplify the identification of dual-use items during the im
plementation of export control measures.
In the case of identification by the commodity HS code, the final decision on the identification of items as dual-use items is carried out taking into account the technical parameters of controlled items indicated in the control list, as well as explanations and notes in it.
Order of the Minister of Finance of Georgia No 291 of 30 September 2014 "On the adoption of rules for issuing permits on export, import and transit of dual use items, license forms and license application forms"[61]
Order of the minister approves:
a) The application form for obtaining export, import and transit permits involving dual-use items;
b) The application form of permits for brokering services and technical assistance involving dual-use items;
c) The export permit form for dual-use items;
d) The import permit form for dual-use items;
e) The transit permit form for dual-use items;
f) The brokering service permit form for dual-use items;
g) The technical assistance permit form for dual-use items.
Order of the Minister of defense of Georgia No. 65 of 29 August 2014 "Concerning the approval of the statute of the Standing Commission of the Ministry of Defense working on military and technical issues"[62]
This statute defines the powers of the Standing Commission of the Ministry of Defense working on military-technical issues, the rules for activities and conditions for making decisions by the commission, grounds for cancelling and suspending recommendations, content of applications and documents to be submitted for obtaining a recommendation as well as the activities of a group of experts from relevant bodies/institutions represented in the commission.
Ordinance No. 487 dated December 21, 2011 of the Government of Georgia “On the establishment of the Government Commission for the implementation of the UN Security Council Resolutions”.
The decree defines the composition of the government commission working on the implementation of the UN Security Council resolutions and the statute of this commission.
[60] https://matsne.gov.ge/ka/document/view/2520245?publication=0
[61] https://matsne.gov.ge/ka/document/view/2520515?publication=0
[62] https://matsne.gov.ge/ka/document/view/2477984?publication=0
Tasks of the commission:
a) Ensure compliance with obligations under resolutions adopted by the United Nations Security Council in accordance with Chapter VII of the Charter of the United Nation.
b) Take effective measures to prevent the import and export of goods subject to export and/or import control, free movement and use of property or other activities to support terrorist acts by persons associated with terrorism and other persons determined by UN resolutions. In order to comply with the sanctions imposed by the resolutions of the UN Security Council, the working group of the Commission has the right to apply to the relevant state bodies with a request not to issue a Georgian visa or permission to enter the territory of Georgia for individuals or citizens of certain countries.
In order to comply with the sanctions imposed by the resolutions of the UN Security Council, the working group of the Commission is authorized to apply to the relevant state bodies with a request to impose restrictions on the issuance of permits for import, export, re-export, transit, and temporary import and/or export of products subject to export and import controls.
Normative acts regulating customs control in Georgia
According to the definition given in the Customs Code of Georgia:
The customs legislation of Georgia consists of customs formalities related to the international agreements of Georgia, this Code and by-laws adopted or issued in accordance with it (part 1 of Article 2 of the Customs Code).
- An international agreement that has entered into force for Georgia has priority over the Customs Code (Article 2. Part 3 of the Criminal Code).
The Customs Service of Georgia is guided in the implementation of customs formalities by:
Customs Code of Georgia and Order of the Minister of Finance of Georgia No. 257 of 29 August 2019 “On approval of instructions for the movement and customs clearance of goods in the customs territory of Georgia”
Customs Code of Georgia[61]
Customs Code (Doc. No. 4905-II, 28.06.2019)
The Code defines the rules and formalities related to the import of goods into the customs territory of Georgia and the export of goods from the customs territory of Georgia, the procedure for resolving customs disputes, the types of customs violations and responsibility for these violations, the goals, rights and obligations of the customs authority of Georgia regulate the relations arising from the movement of goods across the customs border of Georgia.
Order of the Minister of Finance of Georgia No. 257 of 29 August 2019 “On approval of instructions for the movement and customs clearance of goods in the customs territory of Georgia”[64]
This order determines the customs control measures by the customs authorities, rules and mechanisms for the implementation of customs control and customs formalities, objectives and types of control, basics of post-clearance control, principles of using an automated risk management system, bans and restrictions on goods subject to customs clearance and control as well as license control rules.
[63] https://matsne.gov.ge/document/view/4598501?publication=3
[64] https://matsne.gov.ge/ka/document/view/4644552?publication=0
This order determines the filling, issuance and cancellation of the certificate of registration of goods and vehicles, electronic registration of data from the TIR book, filling out and checking the customs declaration, customs control using video and audio recordings, X-ray control systems or other electronic systems, inspection of goods, sampling and expertise in customs control zones (Chapter III).
Section 2. Role of Customs Department in Export Control System as Licensing Authority
The functions and structure of Customs Department
United Nations Security Council resolution 1540 (2004) gives customs authorities a special role in export controls. UNSCR 1540 (2004) calls on countries to fulfill their obligations under the Resolution and implement efficient border control measures regarding the circulation of materials, equipment and technologies subject to export control and to take legislative measures to detect the illicit transfer of such goods (Paragraph 3 (c)). Also, develop, review, maintain and update effective export and cross-border movement (transshipment) control mechanisms for such goods (Paragraph 3 (d)) at the national level, directly related to customs activities.
According to Article 5 of the Customs Code of Georgia:
The customs authorities of Georgia are:
a) Legal entity under public law of the Ministry of Finance of Georgia - the Revenue Service (hereinafter referred to as the Revenue Service);
b) Customs Department of the Revenue Service.
The customs authority carries out customs supervision, control and formalities.
The customs authority, within the limits of its competence:
a) Controls the international trade of Georgia in fair and free trade;
b) Protects the financial interests of Georgia;
c) Protects the economic space of Georgia from unfair and illegal international trade, supporting economic activity;
d) Ensures the security of the state of Georgia and its inhabitants, as well as environmental protection, if necessary - in cooperation with other state bodies;
e) Carries out phytosanitary, veterinary and sanitary border quarantine control;
f) Issues a license, permit and certificate;
g) Implements protective measures in trade;
h) Takes other measures provided for by the legislation of Georgia.
The Customs Department is a structural unit of a legal entity of public law (LEPL) under the Ministry of Finance of Georgia, acting on behalf of the state in the performance of its functions.
The regulations of the customs department, its structure and the functions and duties of each structural unit are determined by the order of the Revenue Service dated June 2, 2011 No. 2742 "On the approval of the regulation of the structural units of the public law legal entity - Revenue Service".
The legal address of the department: 4, Soso (Koba) Abzianidze Street, Tbilisi.
The structure of the customs administration consists of 13 divisions exercising customs control, clearance of the goods and administration of taxes, identification and analysis of risks, development of risk profiles, verification and coordination of the requirements of Georgian legislation regarding non-tariff measures, product identification, control of permit conditions, etc.
The divisions of the customs department are:
- Service quality monitoring;
- Subsequent inspection of goods;
- Organization of customs control;
- Legal affairs;
- Customs methodology;
- Customs Risk Management;
- Customs value and Customs classification;
- Customs laboratory;
- Non-tariff control;
- Special equipment;
- Sanitary, phytosanitary and veterinary control;
- Cynology;
- Data processing.
Customs Control Procedures in Relation to Customs Clearance, Identification of Goods and the Issuance of Permits are carried out in Six Customs Clearance Zones (CCZ and eCCZ) and its Four Branches:
- Telavi regional office (Telavi, 1 Erekle II Avenue, Tel: +995 32 226 23 29)
- Akhaltsikhe regional office (Akhaltsikhe, 54, Natenadze Str., Tel: +995 32 226 21 28);
- Kutaisi regional office (Kutaisi, 5, I. Javakhishvili Str., Tel: +995 32 226 18 99);
- Rustavi regional office (Rustavi, 36, Kostava Str., Tel: +995 32 226 21 11);
- Electronic Customs Clearance Zone (eCCZ)
- Customs Clearance Zone (CCZ) "Tbilisi" (Tbilisi, bypass road 36 km. Gardabani municipality, Tel:+995 32 226 28 10 );
- Customs Clearance Zone (CCZ) "Tbilisi 2" (Tbilisi, bypass road 36 km. Gardabani municipality, Tel:+995 32 226 28 20);
- Customs Clearance Zone (CCZ) "Batumi" (Senaki, Poti, Sarpi Highway 106 km. Khelvachauri municipality, Tel:+995 32 226 27 55);
- Customs Clearance Zone (CCZ) "Poti" (Poti, 32, Javakhishvili Str., Tel:+995 32 226 28 58);
- Customs Clearance Zone (CCZ) "Tbilisi Airport" (Tbilisi Airport adjacent territory, Tel:+995 32 226 28 58).
The Structure of the Customs includes 24 Customs Crossing Points (CCP) (four of which operate in the Tbilisi Technological Park, Poti and Kutaisi free industrial zones), where the Product Identification, Issuance of Permits and Control of Fulfillment of Permit Conditions are carried out:
- Customs Crossing Point "Sadakhlo" Motorway (Georgia-Armenia Border);
- Customs Crossing Point "Sadakhlo" Railway (Georgia-Armenia Border);
- Customs Crossing Point "Red Bridge" (Georgia-Azerbaijan border);
- Customs Crossing Point "Red Bridge" (Georgia-Azerbaijan border);
- Customs Crossing Point "Gardabani" (Georgia-Azerbaijan border);
- Customs Crossing Point "Mtkvari" (Georgia-Azerbaijan border);
- Customs Crossing Point "Guguti" (Georgia-Armenia border);
- Customs Crossing Point "Lagodekhi" (Georgia-Azerbaijan border);
- Customs Crossing Point "Samtatskaro" (Georgia-Azerbaijan border);
- Customs Crossing Point "kazbegi" (Georgia-Russia border);
- Customs Crossing Point "Vale" (Georgia-Turkey border);
- Customs Crossing Point "Ninotsminda" (Georgia-Armenia border);
- Customs Crossing Point "Sarpi" (Georgia-turkey border);
- Customs Crossing Point "Kutaisi and Senaki Airports and Kutaisi free industrial zone";
- Customs Crossing Point "Batumi port";
- Customs Crossing Point "Poti and Kulevi sea ports and Poti free industrial zone";
- Customs Crossing Point "Tbilisi Airport and Free Industrial Zone of Tbilisi Technological Park";
- Customs Crossing Point "Batumi Airport";
- Customs Crossing Point "Kartsakhi-Akhalkalaki Railway" (Georgia-Turkey Border);
- Customs Crossing Point "Kartsakhi" (Georgia-Turkey Border).
The export control functions of the Customs department include: issuing permits for dual-use goods, modifying, revoking and rejecting permits issued, identifying goods and making decisions regarding the circulation of dual-use goods. Developing export control rules, advising customs officers on licensing and export control issues, conducting outreach activities for the business community, control of permit conditions at customs check points and clearance zones, etc.
Unified electronic system[65]
Applications for obtaining permit for dual-use items are submitted and approved through the "Unified Electronic System of Licenses, Permits and Certificates" (hereinafter referred to as the "Unified Electronic System").
It was created on the basis of the resolution of the government of Georgia No. 1018 dated June 9, 2014 on the implementation and operation of the “Unified Electronic System of Licenses, Permits and Certificates”.
On October 20, 2021, the above decree was replaced by the decree No. 1879 of the Government of Georgia "on electronic issuance of licenses, permits and certificates” which focuses on the implementation of customs formalities on the principle of “Single Window”, according to which the permit seeker has the opportunity to submit an electronic application from the personal page of the registered user to the customs authority on the website of the Revenue Service (rs.ge), and the issued permit is delivered to the applicant electronically, on the same personal page.
This system is a software module in which all authorized bodies issuing licenses, permits and certificates established by the legislation of Georgia ensure the upload of licenses/permits/certificates issued by them, which must be submitted when implementing customs control measures.
When goods are moved across the customs border of Georgia, licenses, permits, certificates uploaded by the issuing authorities to the "Unified Electronic System" are deemed to have been provided to the customs authority, and the above documents are not required to be provided in material form.
[65] https://matsne.gov.ge/ka/document/view/2379051?publication=0
Permitting rules
Permit is the right to perform a certain action for a certain or indefinite period, certifying that the action complies with the conditions established by law.
The decision to issue a permit, refuse or revoke it is taken on the basis of an administrative act, which must comply with the requirements established in Chapter IV of the General Administrative Code of Georgia.
According to the first paragraph of Article 10 of the Law of Georgia "On the control of military and dual-use goods":
The Legal Entity under Public Law (LEPL) Revenue Service is a body authorized to issue the following permits for the dual-use goods specified by the lists
a) Export permits;
b) Import permits;
c) Transit permits;
d) Brokerage services permits;
e) Technical assistance permits.
Permits are issued by customs officers in five customs clearance zones (CCZ) and four customs clearance offices.
To obtain permission for dual-use goods, the applicant from the website of the Revenue Service (https://www.rs.ge/) or website https://elicence.rs.ge electronically submits to the Customs Department an application and the following documents through the "Unified Electronic System"
Application;
- Extract from the Registry of Entrepreneurs and Non-Entrepreneurial (Non-commercial) Legal Entities or copies of documents confirming identity in accordance with the legislation of Georgia. A legal entity under public law (LEPL) must attach certified copies of constituent documents in addition to the application[66];
- Document confirming payment of the permit fee;
- Original or certified copy of the transaction, purchase document (contract, invoice) confirming the actions determined by the permit;
- Description of technical specifications (technical documentation, MSDS[67] etc.)[68] of a product.
- The recommendation of the Standing Commission on Military-Technical Issues of the Ministry of Defense of Georgia, if the dual-use items included in the control list are marked with one (*) or two (**) asterisks, and/or there is a reasonable assumption that the goods will be used to create weapons of mass destruction or for military purposes in the destination country;
- End-user certificate issued by the country of import or its certified copy[69];
- Other documentation required by the licensing authority that is to make a decision;
An appropriate license and/or permit, if any, as defined by the Law of Georgia “On Licenses and Permits”[70].
In exceptional cases, when it is technically impossible, the submission of documents in material form is also allowed.
[66] Submission of applications for permits, registration and consideration is carried out in accordance with Chapter VI of the General Administrative Code of Georgia.
[67] MSDS (Material Safety Data Sheet) is a safety data sheet of a chemical product that contains information on substances, materials, mixtures, and the name of industrial waste, classification, qualities, treatment, harmfulness, use and transportation.
[68] Technical documentation should include: General technical name, trade name, use areas, constructive description, functionality, technical characteristics that correspond to the characteristics of similar products on the control list.
[69] Note. While exporting, when the product is returned to the sender, no end-user certificate is required.
[70] Along with the dual-use items permit, it is possible to submit e.g. license for nuclear and radiation activities; General license for the production and manufacture of military products; General license for repairs (including upgrades and on-site maintenance), licensing activities for specific dangerous pathogens, etc.
The customs officer, whom the program selects automatically, receives the following SMS message on his mobile phone and e-mail address: “You have given an application №XXXXXX for execute.
The permit is issued electronically through the “ORACLE” automated data system or program “Stratlink”.
The customs department has 3 days to check the application and the attached documents.
If the application or attached documents do not contain sufficient information or the submitted documents are incomplete, the Customs Department sets a time limit for the applicant to submit additional documents or information. This period should not be less than 5 days.
In this case, the term for consideration of the application is suspended.
If the applicant needs more time to find the required document or information, the Customs Department can extend the specified period only once, but no more than 15 days. If the applicant does not receive and submit the requested document or information within the specified time period, the Customs Department has the right to leave the application without consideration.
The term for consideration of the application will be extended after the submission of the relevant document or information.
The authorized customs officer of the customs department is obliged to properly study all the issues necessary for making a decision that are related to the criteria established for issuing a permit.
If the licensing customs officer decides that the timeframes for issuing a permit is insufficient for examining all the circumstances (for example, for collecting information, obtaining documents, examining them, etc.), it has the right to extend the permit for three months. The applicant must be notified of the extension within 15 days of the receipt of the application.
Article 26 of the law of Georgia “on licenses and permits” provides for an additional three months for the extension of the period for issuing a permit based on a government decree.
If application and necessary documents for issuing a permit are provided in full, the Customs Department is obliged to issue a permit within 20 days after the submission of the application.
In case of refusal to issue a permit, the applicant is notified of the refusal within 20 days from the date of receipt of the application.
Prior to the expiry of the deadline for issuing a permit, the Customs Department issues the permit electronically.
The permit applicant has the right to communicate with the Customs Department through a representative. In this case, all the actions required to obtain permit are performed by a representative.
For this, the representative shall provide a document of his/her eligibility in addition to the application.
The fee for obtaining a permit for dual-use goods is 30 GEL. The fee is paid in accordance with the law of Georgia on license and permit fees. The payment is made under treasury code 300773094.
Section 3. Basic Customs Procedures
3.1. Customs procedures
Definition of customs territory,Definition of “subject to customs supervision upon entry into the territory”
Definition of customs controls
Definition of customs procedure;
List of customs procedures;
Special customs procedures;
The customs territory of Georgia consists of: the land territory; the territorial waters and the internal waters of Georgia; the airspace of Georgia; installations, structures and an artificial island territory located, which are subject to Georgia's exclusive jurisdiction.
The customs border of Georgia coincides with the state border of Georgia.
Customs formalities in the customs territory of Georgia shall be carried out in the Georgian language, and in the Autonomous Republic of Abkhazia, in the Abkhazian language as well.
Goods brought into the customs territory of Georgia, upon entry are subject to customs supervision and may be subject to customs control procedures.
In the customs territory of Georgia, goods may be subject to any of the following procedures:
a. Release for free circulation
b. Special procedures;
c. Export;
d. Re-export (Goods can be taken out of the customs territory of Georgia by re-export)
e. Temporary storage (Goods imported into the customs territory of Georgia are subject to temporary storage)
Release for Free Circulation
According to the International Convention on the Simplification and Harmonization of Customs Rules,"Customs clearance for domestic consumption" means the customs procedure for the release for free circulation of imported goods after payment of any import duties and taxes on the customs territory and completion of all necessary customs formalities;
E2./F1. "Goods in free circulation" means goods that can be used without restrictions by the Customs Service.
Foreign goods intended for sale, consumption or use in Georgia are released for free circulation.
When goods are released for free circulation, the obligation to pay import duties arises, protective measures, prohibitions and restrictions on trade in goods are applied, as well as other requirements determined by legislation related to the import of these goods are met.
When released for free circulation, goods are declared with a customs declaration.
The customs declaration must be filed by the person or his representative and together with the declaration, he/she must submit to the customs authority all the documents and information necessary for declaring the goods in the procedure for release for free circulation.
A customs declaration may be lodged in advance, prior to the presentation to the customs authorities of the goods covered by the said declaration. Where the goods are not presented to the customs authorities within 45 days after the customs declaration is lodged in advance, the customs declaration shall be deemed not to have been lodged.
Goods that are pre-declared for the procedure of release for free circulation when imported into the customs territory of Georgia, the declaration is processed and the goods are released at the customs checkpoint using an automated data processing system.
If the goods are not declared in advance, no later than 3 working days after the completion of border control, a summary declaration of goods is made at the customs checkpoint.
Summary declaration is the presentation of general data on goods required for customs supervision, customs control and formalities.
Summary declaration is made electronically or in writing.
For the purpose of summary declaration, the following are submitted to the customs checkpoint:
- Transport document (CMR, TIR, Bill of Lading, Air/Rail waybill etc.)
- The original or copy of the purchase contract or invoice, or other relevant document
- Relevant permit/certificate/license if any non-tariff measures are applied to the goods;
- Ordinance of the Government of Georgia No. 89 of February 15, 2019 “On Approval of the Rules for the Carriage of Dangerous Goods by Road Vehicles” if the goods are classified as dangerous goods specified in Table A of Chapter 3.2 of the Agreement concerning the International Carriage of Dangerous Goods by Road (ADR)
- Permit/authorization for the carriage of goods by road vehicles or a permit provided by order No. 06 of January 27, 2012 of the LEPL Land Transport Agency for international road transport of goods, issued by the competent authorities of the partner countries.
The information on the goods submitted at the customs checkpoint is reflected in the certificate of registration of goods and means of transport (certificate), through which customs control and registration of goods moving through the customs territory of Georgia is carried out.
The certificate is filled in electronically, through the automated system " eCustoms" by an authorized customs officer or a person admitted to the " eCustoms ".
The automated data system "eCustoms" also displays information about goods transported by TIR-book and the ATA book.
According to the certificate, goods are moved from the customs checkpoint to the place of registration or to another customs control zone.
The procedure for release for free circulation ends by concluding a customs declaration and the release of goods, which means granting the right of desposal of goods and/or the right to use goods.
The import duty is paid when using the procedure for release for free circulation:
a) No later than 5 calendar days after the release of the goods;
b) No later than 45 calendar days after the release of the goods – for example: the wheat belonging to the participant of the "Golden List" under the Heading 1001
c) No later than 30 calendar days from the date of assignment of the registration number to the Customs Declaration (Form 4), for goods brought by air and/or hand luggage through the customs territory of Georgia and goods up to GEL 10,000 (group of goods) imported by post.
The list of goods of heading 8401-9033, for which the amount of VAT charged upon import is paid no later than 45 days after the release of these goods for free circulation, is specified in the order of the Government of Georgia № 431 of September 12, 2016 on “the Approval of the List of Goods Indicated in Codes 8401-9033 of the National Foreign Economic Activity Commodity Nomenclature”.
Special Procedures
Goods may be placed under any of the following special procedures:
a) Transit;
b) Customs warehouse;
c) Free zone;
d) Temporary admission;
e) End use;
f) Inwardlprocessing;
g) Outward processing.
Transit Special Procedure
According to the International Convention on the Simplification and Harmonization of Customs procedures (WCO Kyoto convention) , transit is a customs procedure under which the carriage of goods under customs control is carried out from one customs authority to another.
The Customs Service authorizes the transit of goods on its territory:
From the customs authority of entry to the customs authority of exit;
From the customs authority of entry to the internal customs authority;
From the internal customs authority to the exit customs authority;
From one inland customs authority to another inland customs authority.
According to Article 118 of the Customs Code of Georgia:
The transit procedure allows for foreign goods to be moved between two points within the customs territory of Georgia. The application of a transit procedure shall not result in:
a) the incurrence of an obligation to pay import duty;
b) the application of a measure to protect trade with respect to goods where the bringing of the goods into the customs territory of Georgia or taking them out of the customs territory of Georgia is not prohibited.
Foreign goods and/or vehicles are moved through the customs territory of Georgia in transit procedure as follows:
a) Between foreign states (or between foreign territories) through the customs territory of Georgia, from the customs checkpoint of enrty to the customs checkpoint of exit;
b) From the customs authority of entry/to one customs control zone/from another place determined by the customs authority - to the customs authority of destination /to another customs control zone /to another place determined by the customs authority.
In accordance with the transit procedure, the movement of foreign goods through the customs territory of Georgia can be carried out using one of the following documents:
a) Customs declaration of goods;
b) Certificate of registration of goods and vehicles;
c) Railway electronic registration certificate - in case of goods transported by rail;
d) Vehicle registration certificate.
e) Customs declaration of a natural person;
f) TIR-book;
g) ATA book
h) Accompanying document on the vehicle - when empty vehicle, trailer, semitrailer is moving independently.
The term of transit of goods on the customs territory of Georgia is 20 calendar days.
Goods brought into the territory of Georgia and intended for transit, at the request of the declarant, the holder of the procedure and/or the carrier, may be placed under the customs warehouse procedure or stored temporarily in accordance with the rules established by law.
Goods transported in accordance with the transit procedure must remain intact, except for changes caused by normal wear and tear, natural loss due to normal storage conditions or transportation.
The Warehouse Procedure
According to the International Convention on the Simplification and Harmonization of Customs procedures, "storage procedure in a customs warehouse" means a customs procedure according to which imported goods are stored at a customs-controlled place (customs warehouse) without import and other duties.
The customs warehouse procedure allows foreign goods to be stored in a customs warehouse, customs authority warehouse or other place of storage without causing:
a) An obligation to pay the import duty;
b) Application of a protective trade measure to goods, unless the import or export of such goods to the customs territory of Georgia is prohibited.
In the customs warehouse procedure, the goods are declared by submitting the customs declaration of the goods.
Goods placed under the customs warehouse procedure may be stored in a customs warehouse, a customs authority warehouse and the customs clearance zone (CCZ), as well as in another place of storage, in cases specified by law.
Goods placed under the customs warehouse procedure must remain in the same condition, except for changes caused by:
a) Natural wear and tear;
b) Natural losses typical of normal storage conditions;
c) Operations carried out to ensure the storage of goods, to improve the type/condition of goods, to facilitate transportation and sale.
The storage period for goods placed under the customs warehouse procedure should not exceed 2 years. The applicant may extend this period for an unlimited period, provided that each extended period does not exceed 2 years.
In exceptional cases, the customs authority may set a time limit for the completion of the customs warehouse procedure for goods the long-term storage of which, depending on its species and characteristics, may endanger human or animal health, plant or environment.
It is permissible to transfer ownership of goods stored in a customs warehouse under the customs warehouse procedure on the basis of a written agreement or other document of purchase of goods between the owner of the goods and any other person.
Free Zone Special Procedure
(According to the International Convention on the Simplification and Harmonization of Customs Procedures, "free zone" means that part of the territory of a contracting party in which any imported goods in respect of import duties and taxes, are normally regarded as goods outside the customs territory.)
A free zone is a specially designated part of the customs territory of Georgia, which is intended for the implementation of activities permitted by law.
The decision to establish a free zone is made by the Government of Georgia on the basis of an application from an interested person and the provision of an appropriate guarantee.
The perimeter of the free zone is controlled by the customs authority when entering and exiting the free zone,.
A simplified customs declaration is submitted to the customs authority when goods are entered into a free zone.
Both foreign and Georgian goods can be placed in the free zone:
- The importation of foreign goods is not considered as a procedure for release of goods for free circulation and consequently, no import duty will be paid on these goods;
- When placing Georgian goods the norms of the customs legislation of Georgia are used, which are applied in the export procedure when placing similar goods.
When placing foreign goods in a free zone, the type of customs procedure for goods is defined as a free zone, and when placing Georgian goods in a free zone, they are subject to an export procedure.
The import, storage, production, and sale of weapons and ammunition, nuclear and radioactive substances, narcotics and psychotropic substances, tobacco products and/or tobacco raw materials (except for personal use) are prohibited in the free zone.
A list of activities that can be taken in relation to goods under the free zone procedure to store goods, improve the type or condition of goods and prepare them for transportation is determined by the
order of the Ministry of Finance of Georgia No. 257 of 29 August 2019 “On approval of instructions for the movement and customs clearance of goods in the customs territory of Georgia”.
In the free zone procedure, goods can be processed indefinitely. In exceptional cases, the customs authority may set a time limit for completing the free zone procedure for goods, the long-term storage of which, depending on their type and nature may endanger the health of people or animals, plants or the environment.
Goods may be exported from a free zone outside the customs territory of Georgia by export or re-export, and when goods are imported from another free zone into the customs territory of Georgia, the goods are considered foreign goods and are subject to customs supervision.
Goods can be exported from the free zone to another country through the export procedure if the goods were placed in the free zone under the export procedure, or if the goods were produced in the free zone or re-exported if the goods were under the free zone procedure.
Temporary Admission Procedure
(According to the International Convention on the Simplification and Harmonization of Customs procedures, "temporary admission" means a customs procedure under which certain goods may be brought into the customs territory with full or partial exemption from import duties and taxes; such goods must be imported for a specific purpose and re-exported within the prescribed period intact, except for normal wear and tear during use.)
Under the temporary admission procedure, foreign goods intended for re-export may be brought into the customs territory of Georgia for use therein, which shall not entail, in respect of the goods, the application of measures to protect trade, unless the bringing and taking of such goods into or out of the customs territory of Georgia is prohibited.
During temporary admission, goods shall be subject to total or partial relief from import tax.
The list of goods with total relief from import tax is determined by Article 4 of the “Instruction on the temporary Aadmission procedure ”approved by the order of the Ministry of Finance of Georgia No. 257 of 29 August 2019 “
The list of goods the temporary addmition of which is prohibited, is defined by Article 3 of the “Instruction on the temporary Aadmission procedure ”approved by the order of the Ministry of Finance of Georgia No. 257 of 29 August 2019 “
The goods to be placed under the temporary admission procedure shall remain in the ownership of the person established outside the customs territory of Georgia.
The holder of one authorization can put the goods in the procedure of temporary admission for not more than 3 years.
In exceptional cases, the customs authority is authorized to extend the established 3-year term on the basis of a motivated application of the authorization holder.
The total period of placing goods under the temporary admission procedure shall not exceed 10 years,The declaration of goods under the temporary admission procedure is carried out using a customs declaration, registration certificate or ATA book in accordance with the Convention on the Temporary Admission of Goods (Istanbul, June 26, 1990) or in accordance with the ATA carnet convention for the temporary admission of goods (Brussels, December 6, 1961) when goods are temporarily admitted into the customs territory of Georgia with full exemption from import duties.
Goods temporarily admitted and partially exempt from import tax from the date of registration of the customs declaration are taxed for each full and incomplete calendar month of stay in the customs territory of Georgia in the amount of 3 percent of the amount to be paid on the date on which the customs declaration of temporary admission was registered and the goods were released for free circulation;
This amount must be paid no later than the 15th day of each month after the goods have stayed in the customs territory of Georgia, and the last payment must be made on the day of completion of the temporary admission procedure. The applicant has the right to pay the due amount at the same time within the prescribed period.
For goods under the temporary admission procedure, partially exempted from payment of import duty, the declarant shall fill in the "Schedule of payment of the amount due for temporary admission"
Temporarily imported goods must be returned in intact condition, except for changes caused by operation, transportation or natural losses characteristic of normal storage conditions;
Application of an end-use procedure
Under the end-use procedure, goods may be released for free circulation with relief from import duty on account of their specific use.
Under the end-use procedure the goods are declared by a customs declaration;
The period of completion of the customs supervision over the reusable goods and, consequently, the procedure for the intended use is determined by the type of goods and the purpose of its import, but not more than 3 years from the date of first use of the intended purpose.
The goods to be included in the end use procedure are the following:
- Import of treasury and / movable property in state ownership
- Import of gold to be transferred to the National Bank of Georgia;
- Import of personal belongings and household items intended for personal use by foreign citizens (including family members living with them) engaged in the exploration and production of oil and gas;
- Raw materials and substances provided for in Chapters 28 and 29 of the National Foreign Economic Activity Commodity Nomenclature for Medical (Pharmaceutical) Purposes, the list of which is defined by the order №1/n-№6 of January 5, 2011 of the Minister of Labor, Health and Social Affairs of Georgia and the Minister of Finance of Georgia– on “Approval of the list of raw materials and substances included in the 28th and 29th groups of the National Foreign Economic Activity Commodity Nomenclature for medicinal (pharmaceutical) purposes, for the supply and/or import of which are exempted from value added tax ”;
- Oxygen classified for medical purposes under commodity sub-position 2804 40 000 00 of the National Foreign Economic Activity Commodity Nomenclature, by the order 1501-69/N/№451 of December 15, 2017 of the Minister of Labor, Health and Social Affairs of Georgia and the Minister of Finance of Georgia “On the determination of the list of goods intended for medical purposes, the supply and/or import of which is exempt from value added tax"
- Import of goods to be transferred to the state and/or public organizations of Georgia for humanitarian aid for the elimination of natural disasters, accidents and catastrophes;
Import of property of diplomatic missions and consular offices of Georgia abroad
Import or temporary importation of goods intended for the official use of foreign diplomatic and equivalent missions, for the personal use of the diplomatic and administrative-technical staff of those missions (including their family members living with them) in the form provided for in relevant international agreements to which Georgia is also a party;
- Import and/or delivery of goods intended for delivery on board international air flights and international sea freight, as well as the import of fuels and lubricants and other aids intended for delivery on board civil aviation flights and aviation operations within the state border of Georgia ;
- Import and/or supply of oil products for oil and gas operations, as defined by the Law of Georgia "On Oil and Gas";
- A vehicle specified in commodity item 8703 of the National Foreign Economic Activity Commodity Nomenclature, which is adapted at the factory for use by a disabled person if the importer of the vehicle is a person who needs a wheelchair.
- Import of goods for natural disasters and catastrophes, as well as humanitarian aid;
- Import of goods provided for in the grant agreement in accordance with the rules established by the Government of Georgia;
- Import of goods financed by grants or concessional loans issued by a foreign government agency and /or international organization, containing at least 25 percent of the grant element. The Ministry of Finance of Georgia will calculate the amount of the grant in accordance with the resolution of the Parliament of Georgia;
Import of equipment, vehicles, spare parts and materials for oil and gas operations provided for by the Law of Georgia "On Oil and Gas";
- Goods exempted from import duty on the basis of an international agreement of Georgia and imported for end use.
Goods placed under the end use procedure shall remain under customs supervision until the end of the said procedure.
Customs supervision shall end where
a. the condition of the end-use of the goods has been fulfilled;
b. the goods have been declared under the export procedure;
c. with the consent of the customs authorities, the goods have been used for other purposes and the respective amount import duty has been paid
d. the goods have been disposed
Inward Processing Special Customs Procedure
(According to the International Convention on the Simplification and Harmonization of Customs Procedures, "Inward processing in the customs territory" means the Customs procedure under which certain goods can be brought into a Customs territory conditionally relieved from payment of import duties and taxes, on the basis that such goods are intended for manufacturing, processing or subsequent exportation)
Under the inward processing procedure, one or more processing operations may be used in respect of foreign goods, which does not entail import duties and the application of a measure to protect trade with respect to goods, where the bringing of the goods into the customs territory of Georgia or taking them out of the customs territory of Georgia is not prohibited.
Processing operation means:
a. Processing of goods, including installation, assembly or adjustment of other goods;
b. Production of goods;
c. Destruction of goods;
d. Repairing goods, including restoring and putting them into working order;
e. The use of goods which are not identified in the processed product but which facilitate or simplify the production of the processed product, whether or not that product is consumed in whole or in part during processing process.
The rate of yield is the amount of processed product, or a percentage of the amount resulting from the processing of a certain amount of goods as part of an inward processing procedure.
Equivalent goods are domestic goods that are used instead of declared imported goods for internal processing in order to obtain a processed product.
In the inward processing procedure, the declaration of goods is carried out through the customs declaration of goods.
The declarant is obliged, together with the customs declaration for goods, to submit:
Details on the procedure for inward processing and calculation of the rate of yield.
a. Information about the person directly carrying out the operation for the Inward of goods;
b. On the description, quality and quantity of goods to be placed under the inward processing procedure, and processed products, remains and waste;
c. In accordance with Article 1 subparagraph (a) of this Instruction on processing operations, timing and methods of their implementation;
e. About methods of identifying unprocessed goods in a processed product;
About the rate of yield or the average rate of yeild or the methodology for calculating it, if necessary.
In addition, the declarant must provide an appropriate guarantee of payment of the import duty on goods subject to Inward processing.
With the consent of the customs authority, equivalent goods may be used in the inward processing procedure.
The use of equivalent goods in the inward processing procedure is not allowed if:
a. Goods placed under internal processing will be subject to anti-dumping measures if declared for free circulation;
b. The products is genetically modified organism or genetically modified product or contains such product.
The completion period of the inward processing procedure should not exceed 3 years. The specified period may be extended based on the motivated application of the declarant.
The inward processing procedure is terminated if the goods and/or processed product and/or waste/scrap to which this procedure applies:
a. Will be processed under a different customs procedure, or
b. Removed from the customs territory of Georgia, or
c. Will be destroyed without waste, or
d. or handed over to the state.
When using the inward processing procedure, unprocessed goods, processed product, waste and/or scrap must be processed in accordance with the relevant customs procedure and/or removed from the customs territory of Georgia before the expiration of the processing period.
Outward processing special customs procedure
(According to the International Convention on the Simplification and Harmonization of Customs Procedures “outward processing” means the Customs procedure under which goods which are in free circulation in a Customs territory may be temporarily exported for manufacturing, processing or repair abroad and then re-imported with total or partial exemption from import duties and taxes)
According to the Customs Code of Georgia:
Under the outward processing procedure, one or more processing operations may be used in respect of Georgia goods temporarily taken out of the customs territory of Georgia. The processed products, when brought into the customs territory of Georgia, may be released for free circulation with total or partial relief from import duty by the holder of the authorization for the outward processing procedure or by a person established in Georgia, provided that said person has obtained the consent of the holder of the authorization for the outward processing procedure and all the conditions for applying the outward processing procedure are fulfilled.
Outward processing means
a. Processing of goods, including the installation, assembly, or adjust to other goods;
b. Manufacturing of goods;
c. Destruction of goods;
d. Repair of goods, including restoration and bringing them into working condition;
e. The use of goods which are not identified in the processed product but which facilitate or simplify the production of the processed product, whether or not that product is consumed in whole or in part during processing process.
The procedure for outward processing is determined in accordance with the export procedure, and and upon importation of the processed product into the customs territory of Georgia, the customs formalities provided for the importation of goods into the customs territory of Georgia shall be carried out.
For the outward processing procedure, goods are declared through a customs declaration.
Along with the customs declaration, the declarant is obliged to submit information to the customs authority:
a) About the person who directly carried out the processing operation
b. On the description, quality and quantity of goods to be placed under the outward processing procedure, and the processed products, remains and waste;
c. About processing operations, timing and methods of their implementation;
d. About methods of identifying unprocessed goods in a processed product;
e. On the yield norm or the average yield norm or, if necessary, the method of its calculation (unless the standard norm is established by the legislation of Georgia);
Also, an agreement with a non-declarant on the processing of goods is submitted to the customs authority, if the processing of goods should be carried out by a non-declarant.
Equivalent goods can be used in the outward processing procedure with the consent of the authorized person of the customs service.
The use of equivalent goods in the outward processing procedure is not allowed if foreign goods processed instead of domestic goods included in the external processing procedure will be subject to anti-dumping measures if they are declared for release for free circulation or if they contain genetically modified organisms or genetically modified products.
The customs authority shall set a deadline for the completion of the outward processing procedure, which shall not exceed 3 years. The time limit set for the inward processing procedure may be extended on the basis of a motivated application by the declarant.
The outward processing procedure is terminated if the goods or processed products and/or waste/scrap included in this procedure are processed under another customs procedure, either destroyed without waste, or handed over to the state.
Goods placed under the outward processing procedure and taken out of the customs territory of Georgia before the expiration of the processing period may be subject to the export procedure without submitting the goods to the customs authority, if the declarant submits a document of alienation of the goods to the customs authority.
When carrying out customs procedures and customs formalities for processed products, unprocessed goods, waste and scrap, the declarant is obliged to submit a "Yield Act" to the customs authority.
Export Procedure
(According to the International Convention on the Simplification and Harmonization of Customs Procedures, “full export” means the customs procedure applied to goods in free circulation that leave the customs territory and are intended to leave that territory on a permanent basis.)
The export procedure allows you to export domestic goods from the customs territory of Georgia (including temporarily, with the possibility of return) or move them to a free zone in the event that trade policy measures are taken.
Goods crossing the customs border of Georgia or placed in a free zone are allowed in export procedures only for goods, the export of which from the customs territory of Georgia or import into a free zone is not prohibited.
Upon export, the goods are declared with a customs declaration at the customs clearance zone or at the customs checkpoint.
Goods (other than the specified goods) can also be declared at the customs post by presenting an waybill or tax document, however, if the export of goods is subject to any prohibition or restriction, a permit/license/ certificate or other relevant documents is provided to the customs checkpoint along with the waybill/tax document
The declarant has the right to replace the goods placed under the export procedure with an outward processing procedure or a free zone procedure on the basis of a reasoned application.
Completion of the procedure for the export of goods is confirmed by the customs checkpoint by removing the registration certificate, railway electronic registration certificate and/or customs declaration from control.
Goods for which an export customs declaration is submitted must be exported from the customs territory of Georgia within 120 days after the registration of the export customs declaration. In case of violation of this period, the declarant is obliged, within 5 days, to submit to the customs authority a petition to cancel the export customs declaration or a petition to extend the period for the export of goods by 10 days.
Re-export
In case of re-export, foreign goods imported into the customs territory of Georgia may be exported outside the customs territory of Georgia (including from the free zone) by exemption from customs duties or by refunding the amount paid (excluding service fees) and/or being considered for the future tax liabilities in accordance with the conditions established for the customs procedure on which the goods were placed.
When bringing goods, a person has the right to declare goods under re-export at a customs checkpoint or declare his/her intention to re-export goods in the future and place goods for this at the place of temporary storage.
Re-export is carried out in respect of goods brought into the customs territory of Georgia and placed in the customs control zone, when the warehouse, inward processing, temporary admission procedures are identifies to be conducted, temporarily stored foreign goods exported from the customs territory of Georgia.
Re-export is also used:
- In the case when the means of transport registered in a foreign state, brought into the customs territory of Georgia, leaves the territory of Georgia within the period established for import.
- When taking out goods moved by pipeline or power lines;
- In the case of the export of goods, in respect of which defects were revealed during the passage of customs formalities and/or inclusion in the relevant customs procedure is impossible;
- If it is established that the goods released for free circulation have a defect or its quantity, quality, packaging or description does not comply with the terms of the foreign economic transaction and therefore it is returned to the supplier or another person specified by him. In this case, the goods released for free circulation will be deprived of the status of Georgian goods and after its re-export, the customs declaration for release of the goods for free circulation will be declared invalid;
- In other cases, when the customs declaration for release of goods for free circulation is declared invalid and the goods released for free circulation will be deprived of the status of Georgian goods.
- In some cases, a re-export declaration is made by filing a customs declaration or certificate of registration (re-export notice) or by filing an ATA book / TIR book.
Completion of the re-export of goods is confirmed by withdrawal of the registration certificate, re-export customs declaration (or re-export notice) out of control or export with ATA carnet/ TIR carnet confirmation.
Temporary storage
According to the International Convention on the Simplification and Harmonization of Customs procedures “temporary storage of goods” means the storing of goods under Customs control in premises and enclosed or unenclosed spaces approved by the Customs (hereinafter called temporary stores) pending lodgement of the Goods declaration.
Temporary storage is the state of foreign goods that are temporarily stored under customs control from the moment they are submitted to the customs authority until they are placed under the customs procedure/re-export;
Goods may be temporarily stored in a customs warehouse, customs authority warehouse, customs-clearance zone or other storage location specified or agreed by the customs authority, subject to the availability of appropriate storage conditions.
- Temporary storage of goods at another place of storage is permitted in the warehouse of the consignee or importer when:
- The consignee or importer of goods is a ministry or a subordinate state institution under its control, the National Bank of Georgia, a foreign diplomatic and similar institution, a commercial bank operating in Georgia, a member of the Golden List, an authorization holder. The authorization holder AEO in the case of goods belonging to them;
- - In the absence of a customs warehouse that meets the necessary conditions for storing the human body, parts of human organs, tissues, stem cells, radiation, dangerous, oversized cargo, HS 0407 (bird eggs for incubation) and 0511 91 901 00 (fertilized fish eggs), 0301 (live fish), goods of 01 Chapter (live animals);
- In other cases defined by law.
Temporarily stored goods must remain intact, except for changes caused by natural wear and tear, natural losses and operations to ensure the protection of the goods, and / or to identify and / or facilitate the sale.
In case of temporary storage of goods, the declarant (owner of the goods) must submit a temporary storage declaration no later than 30 calendar days after the entry of the goods into the customs control zone.
The owner of a customs warehouse also has the right to submit a temporary storage declaration.
In cases established by law, the declaration of temporary storage can be a certificate of registration or a customs declaration / re-export declaration, or a means of special electronic control.
The declaration of temporary storage is considered submitted to the customs authority from the moment the registration number is assigned.
The declaration on temporary storage is filled in electronically in accordance with the established rules by an authorized person (declarant or owner or representative of a customs warehouse) using the electronic database processing system " eCustoms " also by the customs authority, when the declarant or his Representative asks to fill out a declaration of temporary storage.
Temporarily stored foreign goods must be placed under the customs procedure or re-exported within 30 days.
The customs authority has the right to shorten the period by 30 days or increase it by 60 days.
When goods are temporarily stored in a customs warehouse, the storage period is 180 days.
Goods for which the export procedure has already been established can be temporarily stored in a customs warehouse for no more than 120 days.
The customs authority has the right to extend the specified periods of temporary storage in the customs warehouse by no more than 180 days.
Customs formalities (checking documents and information, customs inspection, checking goods subject to customs control at the border, other procedural formalities performed at customs);
(According to the International Convention on the Simplification and Harmonization of Customs procedures, "customs formalities" are all operations that must be performed by stakeholders and the customs service to comply with customs legislation).
3.2. Peculiarities of customs clearance of goods and technologies included in national control lists
Customs control of dual-use products is carried out by the Customs Department in accordance with the Customs Code of Georgia, Order №257 of the Minister of Finance of Georgia of August 29, 2019, “Instruction on Movement and Clearance of Goods in the Customs Territory of Georgia” and acts regulating the circulation of dual-use products.
Customs clearance of goods and technologies included in the National Control List shall be carried out in accordance with the customs procedure for export, the customs procedure for release into free circulation, special customs procedures and re-export regulations.
For the purposes of control of dual-use products, according to the definitions given in the Law of Georgia on Military and Dual-Use Products:
Export is the temporary or permanent withdrawal of products from the customs territory of Georgia subject to customs control, as well as the transfer of computer program and / or technology specified in the control lists outside the customs territory of Georgia by any electronic means, which includes the electronic access of such computer software and / or technology to a natural or legal person or other organizational entity;
Import means temporary or permanent import of products into the customs territory of Georgia;
The definition of transit corresponds to the definition given in the Customs Code of Georgia.
According to the above definitions:
A permit for the export of dual-use products shall be submitted to the customs authority during the customs procedure for the export of strategic goods, during the special customs procedure for external processing and in re-export;
Permit for import of dual-use products shall be submitted to the customs authority for entry into the customs procedure for release of goods subject to permit control for free circulation, customs warehousing / free zone / temporary importation / targeted use / special internal processing procedure.
A permit for the transit of dual-use products shall be submitted to the customs authority during the transit of strategic goods under a special customs procedure.
Dual Export Permit Required for:
- Export of goods specified in the control list of dual-use products;
- Exports of goods not included in the control list, if there is a reasonable assumption that the products will be used in whole or in part or may be used:
a. In connection with the development, production, management, operation, maintenance, detection, identification, storage or dissemination of biological or chemical weapons, nuclear weapons or other explosive devices containing nuclear material, or in connection with the development / production, maintenance, or storage of such projectile / rocket launcher;
b. For military purposes, if an arms embargo is imposed against a purchasing party or country of final destination on the basis of a UN Security Council resolution or Georgia's international obligations or unilaterally by Georgia. In addition, use for military purposes includes:
b.a. Placement / installation into the military products specified in the control list;
b.b. Use of test, production or analytical equipment and its components for the development / production or maintenance of military products specified in the control list;
b.c. Use of any semi-finished / unfinished products for the production of military products specified in the control lists of this Law.
Import and transit permit required for:
Products marked with a single (*) asterix in the dual-use product control list, such as nuclear reactors and specially designed or prepared equipment and components, uranium enrichment equipment using various technologies, installations, "Natural uranium" or "depleted uranium" or thorium in the form of metallic alloys, chemical compounds or concentrates, "special fissile materials", certain explosives, charges, electro-detonators, tritium and lithium-producing plants and related equipment, various high-strength radioactive alloys; radar systems, missile launchers and sounding rockets, etc.;
Goods specified in the list of dual-use products, if their export, import, transit, is carried out in a country or from a country, which is sanctioned / embargoed under a resolution of the United Nations Security Council. In this case the product is considered marked with two (**) asterix.
The Customs Department of the Revenue Service, a legal entity of public law under the Ministry of Finance of Georgia, issues export permits, import permits, transit permits, brokerage services permits and technical assistance permits for dual-use products specified in the Control List.
Pursuant to the Statute of the Revenue Service, permits are issued by the Clearance Economic Zone - Tbilisi, Tbilisi 2, Batumi, Poti, Airport Service / Clearance Division and the Customs Officers of the Telavi, Akhaltsikhe, Kutaisi and Rustavi Clearance Units.
Administrative-legal acts related to the issuance, amendment and revocation of permits shall be signed by the head / deputy head of the economic zone, head / deputy head of the division, head of the department or an authorized person designated by the head of the department.
Import of dual-use products into the customs territory of Georgia
When importing dual-use products into the customs territory of Georgia, a general declaration of goods and customs control measures are carried out at the customs checkpoint.
General declaration means the submission of general data on goods necessary for customs supervision, customs control and customs formalities.
General declaration of goods imported into the customs territory of Georgia shall be made no later than 3 working days after the completion of the border control.
General declaration is made electronically or in writing form.
The importer/exporter/freight forwarder/owner responsible for the transportation of dual-use items into the customs territory of Georgia must submit the following documents to customs:
- Transport document (CMR, TIR, Bill of Lading, Air/Rail waybill etc.);
- The original or copy of the purchase contract or invoice, or other relevant document; in the absence of these documents, goods are subject to mandatory inspection and/or sampling, and the preparation of the relevant act;
- Customs declaration (in case of pre-declaration);
- Dual use items import/export/transit permits 62;
- Permit (if required) to export and import radioactive materials, which can serve as raw materials for the production or generation of nuclear materials, equipment containing radioactive substances, nuclear technologies and know-how as well as export, import and transit of radioactive sources. The said permit shall be submitted if the goods are simultaneously regulated by the Law of Georgia on Nuclear and Radiation Safety and the Law of Georgia on Control of Military and Dual-Use Products. Such may be, for example, special fissile materials and various radionuclides;
- Certificate of special training of the driver for the transport of dangerous goods, certificate of admission of the vehicle, document confirming the positive result of the periodic technical inspection of the vehicle (if necessary). These documents are required if the dual-use product is at the same time a dangerous cargo in accordance with the European Agreement on International Carriage of Dangerous Goods (Geneva, 30 September 1957) and the legislation of Georgia.
- For example, potassium cyanide (cas 151-50-8, UN1680, ECCN 1C350.40), chloropicrin (cas 76-06-2 ,, UN 1580, ECCN 1C450.a.7), etc. .ش).;
- Permit / authorization for international cargo transportation by road transport provided by Georgia's multilateral international and bilateral agreements.
Electronically issued permit for import / export / transit of dual-use products, uploaded in the "Unified Electronic System of Licenses, Permits and Certificates", is considered as submitted at the customs checkpoint and submission of the permit in material form is not required.
If during the general declaration of dual-use products imported into Georgia, a permit for import / transit of dual-use products was not submitted, the authorized officer of the customs checkpoint or customs office shall issue a "notice of intention to dispose of the goods" to the declarant, stating that if the declarant does not submit the permit within three working days, or the goods are not returned, the customs authority shall dispose of the goods.
When importing goods into the customs territory, in order to carry out permit control, the customs officer at the customs checkpoint carries out the initial identification of the goods, which means that according to the HS code and the submitted documents he finds out whether any permit/license is necessary to import the goods into Georgia. Commodity HS code verification is carried out by the so-called "Correlation table".
Pursuant to paragraph 3 of Article 1 of the said Order, the final decision on the attribution of goods for dual-use products shall be taken in accordance with the technical parameters of the controlled products specified in the list of dual-use products approved by Article 1 (b) of the Ordinance of the Government of Georgia №394 of June 13, 2014 on approval of Military and Dual-Use Products control lists and in accordance with its explanations and remarks.
Consequently, the coincidence of the commodity HS code does not unequivocally mean that the specific goods belong to the goods specified in the control list, and in order to finally identify and determine whether the goods are subject to permit control, it is necessary to find information about the technical characteristics of these goods, which are often associated with difficulties in moving goods across the customs border.
Information on the technical characteristics of the product can also be obtained from the data specified in the enclosed documents of the goods (transport consignment note, packing lists, invoices, declarations, cargo manifests, etc.), such as the name and description of the goods, make, model, commodity HS code of the goods, value of the goods, sender, consignee, information on the classification in the control lists, etc.
For more information, the customs officer has the right to request additional documentation about the goods, e.g. Export Declaration, Certificate of Origin, Certificate of Quality, Technical Passport, Security Passport (MSDS), Export Permit issued in the sending country, laboratory or expert report, etc.
In order to identify the goods, the customs officer has the right to inspect the goods: use technical means (portable analyzers, detectors, X-ray inspection systems), open the containers and packaging of sealed vehicles and take samples. When checking the goods and documents, attention is also paid to the dimensions of the goods, the information on the packaging and directly to the product, the conditions of shipping, the features, the route, etc. The discovery of discrepancies in the submitted documentation may give rise to a reasonable suspicion that unlawful shipment is taking place, that permit control is being avoided, or that we are dealing with illegal trade in strategic goods. The customs officer of the customs checkpoint sends the information about the goods to the Non-Tariff Control Division of the Customs Department, where this information is analyzed and examined in detail and the conformity of the characteristics of the specific goods with the characteristics of similar goods in the control lists is determined. Information on the sanctions provided for in UN resolutions or international treaties or agreements against the sending country or exporter, or the person involved in trade, is also verified.
If it is determined that the goods are dual-use products and require a permit for import / transit, the customs procedures for importation into the customs territory of Georgia shall be suspended and the customs authority shall allow the declarant to submit the permit within the prescribed time limits. In this case:
The declarant must apply to the Standing Commission on Military-Technical Issues of the Ministry of Defense of Georgia for a recommendation;
After receiving the recommendation, the declarant must apply electronically to the Service/Clearance Division of the Customs Clearance Zone of the Customs Department for a dual-use import / transit permit.
If the declarant fails to submit the permit within the prescribed period, the goods will be returned to the sending country. If the declarant submits a permit to the customs checkpoint (CCP), the CCP shall complete the customs procedures for entry / transit into the customs territory of Georgia and issue an electronic registration certificate.
In case of import, the permit shall be submitted to the customs authority together with the customs declaration, where the said permit shall be closed (in case of full import of goods) or extended (in case of import of part of the quantity of goods provided for in the permit).
In case of transit, the permit shall be submitted together with the registration certificate to the exit CCP, where the said permit shall be closed (in case of full import and export of the quantity of goods provided by the permit) or extended (in case of import and export of part of the quantity of goods provided by the permit).
Export of dual-use products from the customs territory of Georgia
When temporarily or permanently exporting strategic goods from Georgia, the owner of the goods must present a dual-use product permit when determining the customs procedure.
Before starting the customs formalities, the exporter determines for himself whether the goods belong to the control list of dual-use products and uploads the application for a permit electronically on the website of the Revenue Service (https://rs.ge/), from so-called "Tax Payer's Page"
If the exporter is unable to determine whether the goods are subject to permit control, he / she shall submit a written application to the Non-Tariff Control Division of the Customs Department with a request for identification, attaches the technical documentation of the goods and information about the recipient and / or end user of the product. The goods are identified by the Non-Tariff Control Division using the information provided in the technical documentation, oper sources and on the manufacturer's website. In the process of identification it is possible to use physical and various technical means of inspection of goods, examination, laboratory analysis etc. At the same time, the factor of destination country, importer, end user and end-use of goods is taken into account, so that the specific transaction does not violate Georgia's international obligations regarding trade in strategic goods and the requirements established by the legislation of Georgia.
If the declarant has received a written response from the Customs Department that the product is dual-use, the declarant shall upload the application for a permit electronically on the website of the Revenue Service (https://rs.ge/), from so-called "Tax Payer's Page", in addition, the application is attached electronically by the documents required to obtain a permit.
If the product is marked with one (*) or two (**) asterix in the control list, before obtaining the permit, the declarant must apply to the Standing Commission on Military-Technical Affairs of the Ministry of Defense of Georgia for a recommendation. The application will be reviewed by a CCZ customs officer authorized to issue a permit of the Customs Department:
- Checks the correctness of filling out the application;
- Documents submitted for obtaining a permit.
If the application and the submitted documents meet the requirements established by law, the customs officer will issue a permit.
The permit shall be submitted together with the customs declaration to the customs checkpoint of exit, where the said permit shall be closed (in case of full withdrawal of the quantity of goods provided by the permit) or extended (in case of withdrawal of part of the quantity of goods provided by the permit).
3.3. Customs formalities
(According to the International Convention on the Simplification and Harmonization of Customs Rules, "customs formalities" are all operations that must be carried out by the persons concerned and the customs service in order to implement the customs legislation)
According to the Customs Code of Georgia, a customs formality is a mandatory action to be taken by an interested person and / or a customs authority to comply with the customs legislation of Georgia.
Any person who is directly or indirectly involved in the implementation of the customs formality or to whom the customs control relates is obliged to submit the requested document and / or other information to the customs authority upon request, as well as to assist in the implementation of the customs formality and customs control.
Customs control is a separate action to be taken by a customs authority to ensure compliance with the requirements of the customs legislation of Georgia and other legal acts regulating import of goods from a foreign country into the customs territory of Georgia, transit, movement between customs control zones, the use and export of foreign goods, as well as the use of foreign goods and goods for the intended purpose on the customs territory of Georgia.
Customs control measures and customs formalities are carried out in customs control zones.
The customs control zones are:
a. Customs checkpoints - a customs control zone located at the customs border of Georgia, where customs procedures are carried out for passengers, goods and vehicles;
b. Customs authority warehouse;
c. Customs Clearance Zone - a specially created customs control zone for the Revenue Service, where goods are processed;
d. Customs warehouse;
e. Free trade point;
f. The area designated by the customs authority at the airport, seaport, port, harbor, railway station, open to international traffic;
g. Railway gauge of the railway station located on the customs territory of Georgia - during the period of placement of goods subject to customs control on this railway gauge;
h. Other place of storage, premises, means of transport, where goods subject to customs supervision and / or means of transport are located;
i. Other place designated by the customs authority for customs formalities in accordance with the rules established by the order of the Minister of Finance of Georgia.
Customs control measures are:
- Checking the declaration, documents, data and other information submitted to it in any form;
- Oral survey, electronic surveillance (video and audio recording);
- Inspection of goods, vehicles, buildings and territory;
- Sampling of goods for the purpose of laboratory research;
- Examination of a natural person;
- Marking of goods and / or means of transport using the means of identification;
- Implementation of controlled delivery;
- Post-clearance control of goods;
- Other forms of customs control defined by the order of the Minister of Finance of Georgia.
Customs control is based on:
- random checks, and
- the use of automated data processing tools to identify, assess and take preventive measures based on risk criteria developed at the national and international levels.
Risk is the probability of occurrence of an accident related to the entry, transit, movement, intended use or removal of goods from the customs territory of Georgia and / or foreign goods on the customs territory of Georgia, which:
a. Hinders the proper use of the measure provided by the customs legislation of Georgia;
b. Harms the state financial interest of the Georgia;
c. Endangers the state security of the Georgia and its population, human or animal health or plant health, environment or consumers.
Risk management is the systematic identification of risk in order to take the necessary measures to reduce the risk impact, including random checking. Risk management includes the collection of data and information, the analysis and assessment of risk, the definition of measures to be taken and their adoption, and the regular monitoring and review of these processes and their consequences.
The customs authority shall determine the probability of a violation of the customs legislation and the conditions that may lead to such a violation, the characteristics or a combination of these characteristics, according to which the object of customs control (risk criteria) and specific forms of customs control may be used, and creates risk profiles within the risk management system.
When performing customs control through an automated risk management system, in case of matching the data of the goods declared by the customs declaration with the risk profile, a green, blue, yellow or red corridor is defined for the customs declaration of the goods registered in the system, which means:
"Green Corridor" - release goods without office check of documents and declaration and visual inspection of goods;
"Blue Corridor" - release goods without office check of documents and declaration and visual inspection of goods, subject to necessary post-clearance control, which may include checking the observance of the requirements of the legislation of Georgia related to the accrual of the customs value of the goods and / or the import duty and / or the determination of the commodity HS code and / or the correctness of the quantity and / or number of goods and / or prohibitions and restrictions on goods;
"Yellow Corridor" - clearance of goods without inspection of goods, with full or partial office check of documents and declaration;
"Red Corridor" - the clearance of goods by visual inspection of the declared goods, with or without full or partial office check of documents and declaration.
Inspection of Customs Declaration
In order to check the accuracy of the data contained in the registered customs declaration the customs authority is enabled to:
Examine this declaration and supporting documents;
Require the declarant to submit additional documents;
Inspect the goods;
Take a sample of the goods for its analysis or detailed inspection of the goods.
The customs declaration is checked by an employee of the customs authority, selected by a computer program or a direct supervisor. The person authorized for verification shall send a notification to the declarant on the “commencement of the verification of the declaration” before the verification process starts.
If incorrect data is found in the declaration, the declarant is notified of the "possible rejection of the declared data and requests for additional information" and is given some time to express his opinion, submit relevant arguments and requested information and / or documentation.
The stages of checking the declaration are:
a. Checking the correctness of filling in the declaration;
b. Initial (documentary) verification of commodity HS code definition;
c. Checking prohibitions, restrictions and conditions for placing goods in the declared customs procedure / re-export;
d. Checking the use of tax breaks;
e. Checking the determination of customs value;
f. Check the import duty bill.
When checking the correctness of the declaration, the correctness of the use of the "declaration classifier" is checked, the correctness of entering the data in the columns, including the compliance of the data reflected in the declaration with the data of the documentation attached to the declaration.
During the initial (documentary) verification of the SES SN code definition, it is checked whether the goods indicated in the declaration are classified in the specified commodity code.
When checking prohibitions and restrictions, whether there is any prohibition or restriction on the import / export of declared goods by law and if there is an obligation to submit a consent, registration, certificate, license or permit for placing the declared goods in the declared customs procedure / re-export, the existence of the relevant document in the submitted documents and the authenticity of this document are checked.
Examination of the use of tax benefits is carried out if the declaration indicates the use of such benefits. To do this, the authorized person of the customs authority checks the documents submitted during the customs declaration, which are necessary for obtaining benefits.
In the process of checking the customs value, the authorized employee of the customs authority controls the accuracy of the customs value determined by the declarant in accordance with the methods of determining the customs value established by the Customs Code of Georgia.
After checking the determination of the customs value, the authorized person of the customs authority checks the correctness of the import tax accrual and payment according to the data of the amount paid in the payment document.
Upon completion of the declaration verification or at any stage thereof, the customs official is authorized to make one or more of the following decisions:
a. On the release of goods;
b. On the prohibition of the release of goods;
c. On visual inspection of goods and / or sampling;
d. On the existence of signs of an offense;
e. On the suspension of customs formalities for the release of goods;
f. On the adjustment of the customs value of the goods;
g. On making a change in the declaration or declaring the declaration invalid or annulling it.
If the authorized employee of the customs authority does not agree with the declared data, at the end of the declaration verification he / she fills in the "declaration verification act" where he / she indicates a negative decision.
The declarant has the right to appeal the declaration verification act in the prescribed manner.
The decision on the release of the goods is made by assigning the evaluation number "A" to the declaration (except for the release of the goods in the export procedure). A barcode is automatically assigned to the declaration along with the assessment number.
Examination, sampling, expertize
Delivery of goods for inspection and analysis of the goods to the place of sampling, as well as preparation of goods for sampling and analysis shall be provided by the declarant. Expenses related to these actions shall be reimbursed by the declarant.
If the sample of goods is taken at the initiative of the declarant, the costs of analysis or examination shall be reimbursed by the declarant, and if the sample is taken at the initiative of the customs authority, the costs of analysis or examination shall be reimbursed by the customs authority.
Goods and / or means of transport can be inspected at any stage of customs control and its purpose is: to identify goods and means of transport, to detect and prevent prohibited import / export and / or smuggling of goods, to impose restrictions on goods, determining the correctness of the commodity HS code.
The types of visual inspection are:
a. Inspection of goods and / or vehicles;
b. Inspecting the passenger's personal belongings (luggage / hand luggage);
c. Passenger inspection;
d. Inspection of postal parcels.
The goods are inspected using a technical means - X-ray inspection system (scanner) (hereinafter - scanning) or visual inspection in the customs control zone.
Attending the tour:
a. Authorized person of the customs authority;
b. Declarant / his / her representative;
c. The person in charge of a customs warehouse or free trade point when the goods are stored in a customs warehouse or free trade point;
d. Technical personnel who, if necessary, carry out loading-unloading or other work related to the inspection of goods;
e. Representatives of state controlling and / or law enforcement bodies;
f. Invited experts, specialists.
When deciding on the inspection, the authorized person of the customs authority shall send an electronic notification to the declarant or his representative.
If the goods are placed in a customs warehouse or other place of storage, an electronic message shall also be sent to the owner of that place.
The inspection of goods of one species, namely one denomination (make, model, etc.), classified under unique commodity HS cub-cub position, identically packed, standard smaller packaging, or unpackaged (in bulk, by insertion, etc.) is carried out on random basis, in the amount of not less than 5% of the quantity of goods.
The inspection of goods of several denominations is carried out on a random basis, in the amount of not less than 10% of the quantity of goods of each species.
If the declarant considers that the results of the inspection of part of the goods may not be extended to the whole goods or if the inspection reveals discrepancies between the submitted documents and the actual data of the goods, as well as the quantitative data of the goods, the goods may be re-examined.
The results of the inspection of goods and / or means of transport shall be formalized by the "Inspection of Goods and / or Vehicles".
Video - and audio recording
One of the forms of customs control is observation using video and audio recording means, which can be carried out:
A. In the territory of the customs control zone;
B. On goods vehicles and individuals moving in the customs control zone,;
C. Movement, reloading and / or unloading of goods and / or vehicles subject to customs supervision outside the customs control zone;
D. On controlled delivery.
Video and audio recording is carried out in the customs control zone:
A. By means of a stationary video surveillance camera installed in the territory of the customs control zone;
B. Using a mobile camcorder (including a camcorder attached to a Customs Department uniform).
An appropriate warning sign on the presence of stationary video surveillance cameras in the territory of the customs control zone shall be placed in a visible place.
In the territory of the customs control zone, video and audio recording is carried out using a mobile video camera during detailed inspection of passenger goods (including personal belongings, luggage / hand luggage) and / or means of transport and in relations with the owner of these goods, means of transport, postal items and / or luggage (oral survey, obtaining explanations, etc.), as well as when the passenger resists the employee of the customs authority and / or ignores his / her legal request and / or hinders the implementation of the measure provided by the customs legislation of Georgia.
Recordings obtained using stationary video surveillance cameras and mobile camcorders are subject to storage for a period of 90 calendar days.
Marking using means of identification of goods and / or means of transport
If the marking is necessary for the further identification of the goods and / or is necessary to ensure the inviolability of the goods and / or means of transport and / or the building, at any stage of customs supervision the customs authority or a person authorized by it shall mark it using the means of customs identification.
The customs authority has the right to request the presence of the interested person or his / her authorized representative during the customs identification and / or removal / removal by the customs authority.
The customs authority is authorized to recognize another means of customs identification by which the consignor, carrier, declarant and / or other liable person or foreign customs authority has marked the goods and / or means of transport and / or the building. In this case, the means of customs identification recognized by the customs authority replaces the means of customs identification established in Georgia.
When importing goods by road, the customs checkpoint shall mark the additional means of transport (including trailers).
Means of identification (signs) are: stamp, seal, hatch, adhesive tape, sacks, packing materials etc., which, depending on the specifics of use, must meet the following basic requirements:
A. Must be solid and resistant to damage;
B. It should be possible to place them easily and quickly;
C. It should be possible to check and identify them;
D. It must be impossible to remove them without damage, breakage (visible signs);
E. Must be disposable (except for reusable seals) and have a unique number (reusable seals may not have a unique number);
F. They must be constructed in such a way that it is impossible to copy, falsify or reuse them, they must be marked with a unique registration number, series and initials: "Georgian Customs" in Georgian and English.
Controlled delivery
Article 28 of the Customs Code stipulates that the customs authority of Georgia has the right to use Controlled delivery form, which means the importation, removal from Georgia or transit of goods under the control of a customs authority into Georgia.
A controlled delivery form is used in order to prevent the turnover of goods imported through customs control and to identify the persons participating in this turnover, on the basis of an international agreement of Georgia, at the request of a foreign customs authority and / or other competent authority or at the request of the Georgian customs authority and / or law enforcement body.
The decision on the use of the controlled delivery form is made by the customs authority in agreement with the relevant law enforcement agency.
Post-clearance control of goods
The purpose of further control of the release of goods is to check compliance with the requirements of the legislation of Georgia related to the accrual of customs value of goods and / or import duty and / or the number and / or number of goods and / or the accuracy of the commodity HS code and / or prohibitions and / or restrictions on goods.
Forms of post-clearance control of goods can be office check and on-site inspection.
Post-clearance office check of goods is carried out without leaving the place of activity of the person, on the basis of documents and other information related to customs formalities in the customs authority.
At least 10 working days before the start of the post-clearance inspection of the goods, the declarant and / or the designated person shall be notified in writing or electronically.
The on-site inspection must begin no later than 30 days after the person is notified.
The on-site inspection may last no more than 3 months. If necessary, in agreement with the head of the Revenue Service, it is possible to extend the inspection period by not more than 2 months.
The results of the post-clearance control of the goods are reflected in the post-clearance control inspection act, which is approved by the order of the authorized person of the customs authority.
The customs authority may check during the further control of the release of the goods:
A. The accuracy of the data declared by the customs declaration, as well as the existence, accuracy, authenticity and validity of the accompanying documents;
B. Declarant's accounting and other records relating to the goods to be inspected or related operations before or after the release of those goods.
During the post-clearance control of the goods, the customs authority has the right to inspect the goods and / or to take a sample, if the goods can be inspected and / or a sample can be taken.
Post-release control of goods is carried out only by the customs authority. Other regulatory bodies and law enforcement agencies are prohibited from carrying out further controls on the release of goods.
Goods management measures
Measures for disposing of goods are:
A. Seizure of goods and / or vehicles free of charge in the event of a customs offense as a customs sanction;
B. Destruction of goods;
C. Transfer of goods to state ownership.
Disposal of goods may be made by decision of the customs authority or on the basis of the declaration of the declarant.
Disposal of goods by the decision of the customs authority is used as a means of ensuring the fulfillment of the customs obligation and / or the enforcement of the imposed customs sanction and / or the provision of prohibitions and restrictions established by law.
At the initiative of the declarant, on the basis of his application, it is possible to destroy the goods under the supervision of the customs authority and transfer the goods to state ownership.
By the decision of the customs authority, the destruction of goods and the transfer of goods to state ownership shall be carried out in respect of those goods:
A. Which cannot be released, as it is impossible to carry out customs formalities within the established period due to the reason of the declarant;
B. Whose entry into the customs territory of Georgia and / or removal from the customs territory of Georgia is prohibited or restricted;
C. In respect of which the terms of removal from the customs control zone, storage in the customs control zone and determination of the customs procedure were violated.
Destruction of goods is the bringing of foreign goods under customs supervision by any means (burning, burial, sinking, demolition, mechanical damage and all other permissible means) to a state where it is impossible to recover them economically.
An individual administrative-legal act is issued on the destruction or refusal to destroy the goods.
In order to describe the process of destruction of goods, a "protocol of destruction of goods" is drawn up.
With respect to the waste and / or scrap generated as a result of the destruction of the goods, the declarant shall bear the same obligations as would arise when such goods were placed under customs procedure or transferred to state ownership or completely destroyed or re-exported.
When determining the customs procedure for waste and / or scrap resulting from the destruction of goods, the provisions of the relevant customs procedure defined by the Customs Code of Georgia shall apply to them.
Section 4. Customs Documentation Classifier
1. Types of customs declarations;
2. Transport documents;
3. Other documents: documents certifying the right of ownership, consumption and / or disposal of goods.
(According to the International Convention on the Simplification and Harmonization of Customs Rules, the " an application completed by the Customs Service in the prescribed form, in which interested parties indicate the customs procedure to be applied to the goods and provide the data required by the Customs Service to apply this procedure)
According to the Customs Code of Georgia, a customs declaration is a document/action by which a person declares in the prescribed form and manner that he intends to apply the relevant customs procedure to the goods, and in which, if necessary, indicates an additional condition;
Types of customs declaration:
- Standard customs declaration;
- Simplified customs declaration.
Standard customs declaration forms are:
a. Customs declaration for goods;
b. Customs Declaration - Form 4;
c. Customs declaration of a natural person;
d. Customs declaration of goods of a natural person;
e. Declaration for postal items
f. Customs declaration of the vehicle;
A simplified customs declaration is filled out in the form of a customs declaration of goods in a simplified manner determined by the customs authority.
The customs declaration/re-export declaration is completed by the customs authority or declarant, who has the ability to connect to the appropriate revenue service server and has access to “eCustoms” and/or “Oracle”
Declarant is a person who submits a customs declaration, temporary storage declaration, re-export declaration or re-export notification on his behalf to the customs authority; Or the person on whose behalf the relevant declaration or notification is submitted to the customs authority.
Customs declaration for goods
Customs declaration for the goods is carried out in the procedures for the release for free circulation, end use, export, customs warehouse, temporary admission, Inward processing, Outward processing, transit, as well as re-export.
Only one consignment of goods can be declared in one customs declaration for goods.
When declaring one item from a consignment of goods in the customs declaration, no more than 33 additional sheets can be attached to its main sheet, and no more than 100 items can be declared in one customs declaration.
Annex №1.
Customs Declaration - Form 4
Customs Declaration - Form 4 can be issued:
a. Goods brought by air with luggage and/or hand luggage - in the procedure of release for free circulation;
b. Goods imported by one type of transport (except air transport), up to 10 000 GEL - in the procedure of release for free circulation;
c. Importation of goods in the amount of GEL 15,000, corresponding to groups 28-97 of the National Foreign Economic Activity Commodity Nomenclature (except for group 87), by an individual entering Georgia after staying abroad for more than 6 months, which is not intended for economic activity; and for a diplomatic official caused by a change of business, a trip from a diplomatic mission or consulate of Georgia abroad - in addition to goods intended for personal use;
d. Import of goods (including furniture, household goods, single-family cars) not intended for economic activity when entering Georgia for permanent residence
e. Goods with a customs value of less than GEL 15,000 in the customs export procedure;
f. Personal belongings (except for vehicles), furniture and household goods when leaving Georgia for permanent residence;
g. Goods with a customs value of less than 3000 GEL declared in the outward processing procedure and the resulting processed goods - in the procedure of release for free circulation;
h. Returned goods, which were taken out of the customs territory of Georgia by the customs declaration - Form 4 or the submission of a bill of laoding or a tax document - in the procedure of release for free circulation;
i. Goods imported or exported by post (group of goods) - in the procedure of release for free circulation or export;
j. Goods imported for humanitarian aid or provided for in the grant agreement - in the procedure of end use;
k. For the official use of foreign diplomatic missions and equivalent missions, entry into a special customs procedure for the end use or temporary admission of goods intended for the personal use of diplomatic and administrative-technical staff of these missions (including family members living with them);
l. Goods for personal use imported by a non-resident natural person upon temporary entry into the territory of Georgia (on a business trip or employment contract);
m. At the customs checkpoint "Batumi Port" or at the customs checkpoint "Poti and Kulevi ports” and the “Poti Free Industrial Zone" or “Poti Customs Clearance Economic Zone”or other goods brought in containers with the means of transport to the customs clearance zones (CCZs)of the Customs Department;
Customs Declaration - Form 4
Customs declaration of a natural person
The customs declaration of a natural person (Annex No. 8-VI-01) is filled out at the customs checkpoint when the goods specified in part 3 of the declaration are moved across the customs border of Georgia with luggage and/or hand luggage, in the event that an offense is revealed by a natural person or an employee of a customs checkpoint ,on the basis of information provided by a natural person.
The customs declaration of a natural person is filled in at the request of a natural person - in Georgian, Russian or English.
The customs declaration of a natural person is filled out in writing or electronically.
Annex #3
Customs declaration of a natural person
I. Purpose of the movement
1. Entring Georgia
2. Transit
3. Leaving Georgia.
II. Information about the person
1. Name
2. Surname
3. Place of residence (country, address) ......................................... .....
4. Citizenship ............................................... ......................
5. Travel document № .......................... Personal № ................. .................
6. Place and date of birth ............................................ ...........................
7. Country of origin… ........................................... ......................
8. Country where you are going ............................................ ....................
9. Carries luggage/hand luggage ........................... unit
10. Luggage is sent independently from me ......................... unit.
III. Information about the goods
1. I have with me or I will move the following goods with luggage/hand luggage:
a) Cash (national and / or foreign currency), checks and/or other securities with a total amount exceeding GEL 30,000, or its equivalent in another currency
Yes no
b) weapons or explosives
Yes no
c) narcotic or psychotropic substance
Yes no
d) Antique or work of art
Yes no
e) a poisonous substance or medicine
Yes no
f) plant and/or animal, their parts or product derived from them
Yes no
g) High frequency radio electronic device, means of communication
Yes no
h) radioactive material
Yes no
i) Goods intended for economic activities and/or goods exceeding the duty-free amount and value
Yes no
j) Goods with a customs value of less than GEL 15,000 to be taken out of the customs territory of Georgia (the box is filled in at will of the natural person)
Yes no
k) Goods to be placed under the customs procedure of temporary admission to the customs territory of Georgia (full exemption from import duty), goods moved by luggage or hand luggage
Yes no
2. I am entering Georgia for my permanent residence and intend to import goods provided for by subparagraph pharagrah (d.e) of Article 199 of the Tax Code of Georgia, which will not move with me.
Yes no
3. If you select a positive answer in sub-paragraphs “a” - “t” of the first paragraph of this part, fill in the table:
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Item Title
Quantity (kg., Pieces), amount of cash
* Owner/recipient of the goods
* Type of currency/ securities
Origin and purpose of goods
Notes
1. If you select a positive answer in sub-paragraph "i" of the first paragraph of this part (both when importing goods into Georgia and during transit), fill in the "List of goods subject to declaration", except in the case of submission of a customs declaration for these goods - Form 4 or a customs declaration for the goods of a natural person.
2. If the customs value of the goods to be exported from Georgia is 15 000 GEL and more, and/or a permit/license is required for the export of the goods and you do not declare it with this declaration, you are obliged to declare the goods with the customs declaration or a consignment note/timber consignment note or by submitting a Tax declaration.
3. If you choose a positive answer in sub-paragraph "l" of the first paragraph or in the second pharagraph, fill in the "list of goods subject to declaration". In the case of a vehicle, the model, VIN-code, chassis number, year of manufacture are indicated.
Date "......." .............................. 20 ..... year
Signature of a natural person ............................
Signature of the customs checkpoint employee ........................ B.A.
The second page of the customs declaration of a natural person contains "important information" about the currency control, tax benefits and various customs formalities to be performed by a natural person when importing goods with luggage and hand luggage.
Customs declaration of goods of a natural person
Declaration of goods worth up to GEL 3,000 imported by a natural person on the customs territory of Georgia may be made by a customs declaration of goods of a natural person (Annex № 4).
The customs declaration of the goods of the natural person is filled in at the customs checkpoint or in the Customs Clearance Zone.
The declaration of the type, quantity and value of the goods by the natural person is made orally, and the authorized employee of the customs checkpoint or the customs clearance zone fills in the "Customs declaration of the goods of the natural person", which is verified by the signature of the natural person.
Annex №4
Customs declaration of goods of a natural person
I, --------------------------------- -----------------------------------
(Name, surname) (personal number)
I declare that the goods imported by me to the customs territory of Georgia do not contain excise goods
Total quantity of goods (pieces/kg)––––––––––––
Total cost of goods––––––––––––
I am informed about the imposition of liability in case of incorrect data, which is manifested in:
- for reduced payment –a fine in the amount of 40 percent of the reduced payment
– - for hiding the goods - a fine in the amount of 1000 GEL, and/or confiscation of these goods and/ or vehicles.
I sign -------------------
Date of receipt of the declaration -------------- 20 ---- year
Signature of the person responsible for receiving the declaration ----------------- B.A.
Import duty:
Import Tax: ---------------------------------
VAT: ---------------------------------
Total Amount Paid: ---------------------------------
Number of the document confirming the payment: ---------------------------
Terms of payment: ---------------------------
Declaration for Postal Items
The declaration of postal items (Annex №5) can be made:
a.Goods purchased through electronic procurement and brought to the customs territory of Georgia by post, the release for free circulation of which is not taxed/exempt from import duty (except for goods whose import is restricted and/for their import a permit and/or license is required);
b. Goods to be delivered by postal items from the customs territory of Georgia.
The declaration for postal items is completed by the carrier representing the consignee/sender of the postal item.
Annex №5
Declaration for Postal Items №
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Parcel
№
Name / surname of the recipient / sender,Recipient / Sender Identification / Personal №
Recipient / Sender Address
Recipient / sender phone Number
Country of sending / receiving
online shop
Inv .№
Weight of goods kg
Goods value
Currency
1
2
3
4
5
6
7
8
9
10
11
Postal carrier:
Postal carrier warehouseaddress and other storage location code:
date:
Customs authoritydesignations:
12
13
14
15
Note: Relevant information about the consignor in columns 3, 4, 5 and 6 of the declaration is indicated in the case of the customs export procedure.
Customs declaration of the vehicle
Customs declaration of the vehicle (ammex No. 6) is filed in the customs control zones on the territory of the structural units of the LEPL Service Agency of the Ministry of Internal Affairs of Georgia for motor vehicles in accordance with headings 8429, 8701, 8702, 8703, 8704, 8705 and 8711, in which the volume of the working cylinder of an internal combustion engine exceeds 50 cm3;
And in the case of an electric motor - the maximum output power is more than 4 kW or in the procedures of release for free circulation, end use, export, customs warehousing or temporary admission of trailers and semi-trailers under heading 8716, as well as in re-export declaration;
Also, within 60 calendar days after export from the customs territory of Georgia, returning to the same condition as when exporting from the customs territory of Georgia.
The customs declaration of the vehicle is filled in using the electronic system and is submitted electronically by the agency to the customs authority of registration.
Annex №6
Customs declaration of the vehicle
#tableId {null margin: 0 auto !important; }#tableId {null margin: 0 auto !important; }#tableId {null margin: 0 auto !important; }#tableId {null margin: 0 auto !important; }#tableId {null margin: 0 auto !important; }#tableId {null margin: 0 auto !important; }#assignedTableId-1706691808271 {margin-left: -0.15pt; margin: 0 auto !important; }1. Importer /Exporter
2. Representative
3. Country of dispatch/country ofdestination
4. VIN code
Chassis number
N00000/00000
Operation
R
9. Previous document
10. Transit Number
#tableId {null margin: 0 auto !important; }#tableId {null margin: 0 auto !important; }#tableId {null margin: 0 auto !important; }#tableId {null margin: 0 auto !important; }#tableId {null margin: 0 auto !important; }#tableId {null margin: 0 auto !important; }#assignedTableId-1706691808274 {margin-left: -0.15pt; margin: 0 auto !important; }5. Item Description
11.
Calculation of payments
5.1
5.2
5.3
Accrual
GEL
Item code according to HS
Engine capacity
Vehicle model
Model year of release
11.1
11.2
11.3
11.4
Import tax
Excise
VAT
Total accrued
6. Completion Date
7. Customs value(GEL)
8.signature ---------------------
D
12. Destination customs checkpoint customs warehouse /other place of storage and terms
12.1
Code of customs checkpoint/customs warehouse /other storage place
12.2
Final date of delivery of goods at the customs checkpoint or temporary storage place
12.3
Date of expiration of the storage period of the goods placed under the customs warehouse procedure
#tableId {null margin: 0 auto !important; }#tableId {null margin: 0 auto !important; }#tableId {null margin: 0 auto !important; }#tableId {null margin: 0 auto !important; }#tableId {null margin: 0 auto !important; }#tableId {null margin: 0 auto !important; }#assignedTableId-1706691808276 {margin-left: -0.15pt; margin: 0 auto !important; }Important information:
The declarant and/or his representative are obliged to bring (declare)the vehicle declared during the export procedure or re-export, at the customs post or at the place of temporary storage.
Violation of the term specified in Box 12.2 of this Declaration is a customs offense for which the relevant liability is provided by the Customs Code of Georgia. According to Section 5 of Article 163 of the same Code, if the offender is more than one, they shall be jointly and severally liable under this Code.
Certificate of registration (Internal transit Document)
1. Certificate of registration of goods and vehicles
2. Railway electronic registration certificate
3. Road transport
1. Certificate of registration of goods and vehicles
With the Certificate of registration of goods and vehicles (hereinafter - the certificate) (Annex No. 7) control and registration of the goods and vehicles that are temporarily stored in the customs territory of Georgia, or temporarily admissioned, as well as returned by the customs checkpoint or customs authority are carried out
Certificates of registration of goods and vehicles are filled in electronically through the "eCustoms" by an authorized customs officer or a person admitted to the " eCustoms ".
One certificate of registration of goods and vehicles is issued only for one consignment of goods.
In the case established by law, the certificate of registration of goods and vehicles is filled in in a simplified manner.
Annex №7
2. Railway electronic registration certificate
With the electronic registration certificate of the railway (hereinafter - the electronic certificate (Annex №8), customs control and registration of goods and vehicles (railway carriage/container) moving by rail in the customs territory of Georgia is carried out.
The electronic certificate is filled out electronically through the Tax Administration Information System (ORACLE) by an authorized employee of the customs authority.
One electronic certificate is filled in only for one consignment, which is one or several goods, sent by one sender to one recipient under one contract, with a single wagons/containers train.
Annex №8
4.Vehicle registration certificate
Vehicle registration certificate (Annex №9) shall be used for mechanical vehicles under heading 8701, 8702, 8703, 8704, 8705 and 8711 of the HS, (in which the volume of the working cylinder of an internal combustion engine exceeds 50 cm3, and in the case of an electric motor - the maximum output power is more than 4 kW) and customs control and registration of trailers and semi-trailers under heading 8716 in cases specified by law.
Annex №9
#tableId {null margin: 0 auto !important; }#tableId {null margin: 0 auto !important; }#tableId {null margin: 0 auto !important; }#tableId {null margin: 0 auto !important; }#tableId {null margin: 0 auto !important; }#tableId {null margin: 0 auto !important; }#assignedTableId-1706692035708 {null margin: 0 auto !important; }1. Importer / Exporter
2. Representative
3. Country of dispatch/country ofdestination
4. VIN code
Chassis number
N00000/00000
Operation
R
9.Previous document
10. Transit number
#tableId {null margin: 0 auto !important; }#tableId {null margin: 0 auto !important; }#tableId {null margin: 0 auto !important; }#tableId {null margin: 0 auto !important; }#tableId {null margin: 0 auto !important; }#tableId {null margin: 0 auto !important; }#assignedTableId-1706692047758 {null margin: 0 auto !important; }5. Item Description
5.1
5.2
5.3
Item code according to the HS
Engine capacity
Vehicle Medel
Model year of release
6. Completion Date
7. Customs value (GEL)
8. Signature ---------------------
D
12. Destination customs checkpoint/ Customs
warehouse/temporary goods
Other place of storage and terms
12.1 Code of customs checkpoint/customs warehouse /other storage place
12.2 Final date of delivery of goods at the customs checkpoint or temporary storage place
#tableId {null margin: 0 auto !important; }#tableId {null margin: 0 auto !important; }#tableId {null margin: 0 auto !important; }#tableId {null margin: 0 auto !important; }#tableId {null margin: 0 auto !important; }#tableId {null margin: 0 auto !important; }#assignedTableId-1706692061699 {null margin: 0 auto !important; } Important information:
The declarant and/or his representative are obliged to bring (declare)the vehicle declared during the export procedure or re-export, at the customs post or at the place of temporary storage.
Violation of the term specified in Box 12.2 of this Declaration is a customs offense for which the relevant liability is provided by the Customs Code of Georgia. According to Section 5 of Article 163 of the same Code, if the offender is more than one, they shall be jointly and severally liable under this Code.
Carnet TIR
https://unece.org/transport/tir
Carnet TIR book is used for customs control of goods and vehicles moving on the customs territory of Georgia.
Carnet TIR is a customs transit document used to certify the existence of an international guarantee of customs duties and taxes on goods transported by the TIR system, in the amount specified by the Contracting Parties and under the conditions laid down in the TIR Convention.
The Carnet TIR is a document adopted by the Customs Convention on the International Transport of. Goods under Cover of TIR Carnets (TIR Convention)
Each Carnet TIR has a unique reference number. There may be 4, 6, 14 or 20 fold sheets in a Carnet TIR, as long as one pair of folding sheets is provided in one country. The number of sheets to be drawn indicates the number of countries that can be used for transit using this type of Carnet TIR, including the countries of dispatch and destination. For example, 20 folding booklets can be used for TIR shipping in 10 countries.
Each TIR -Carnet can only be used for one transport.
In case of goods and means of transport transported by Carnet TIR at the customs border of Georgia, the sending customs authority or a person admitted to the system shall ensure the entry of Carnet TIR data electronically in the electronic format of the goods and means of transport.
The corresponding sheets (white and green) on the Carnet TIR and on the cover is marked with the number "D" assigned by "eCustoms". In order to confirm the data, the authorized employee of the customs authority shall sign, indicate the date of filling and affix the personal number stamp or the round seal of the relevant structural unit/subdivision of the Customs Department.
The Carnet TIR is removed from control by the customs authority of destination. In order to be removed from control, box 27 of the TIR book shall indicate the closing number "R" assigned to the electronic form by the customs electronic system "eCustoms", and box 28 shall bear the stamp of the customs authority "removed from control" and the date of removal from control shall be indicated in the appropriate place., the signature of the authorized employee of the customs authority and the personal number stamp or the round stamp of the relevant structural unit/subdivision of the customs department.
ATA Carnet
https://www.atacarnet.com/what-carnetWhat is a Carnet?
A Carnet or ATA Carnet is an international customs and temporary export-import document. It is used to clear customs in 87 countries and territories without paying duties and import taxes on merchandise that will be re-exported within 12 months*. Carnets are also known as Merchandise Passports or Passports for Goods.
In accordance with the Istanbul Convention on “the Temporary admission of the goods “ of 26 June, 1990 or Brussels Convention on “Customs Convention on the ATA Carnet for the temporary admission of goods (ATA Convention) of 6 December 1961, It is possible to use the ATA book for customs control when temporarily importing foreign goods or re-exporting them from the customs territory of Georgia with full exemption from payment of transit or import duties on the customs territory of Georgia.
In case of submitting an ATA Carnet, the customs authority or a person admitted to the system shall ensure that the data on the ATA book are entered electronically in the electronic format of the goods and vehicle registration certificate.
When a natural person transports goods at the customs border of Georgia using luggage and/or hand luggage, the data on the ATA Carnet are electronically reflected in the electronic format of the customs declaration of the natural person.
The registration number (D) assigned by the “eCustoms” electronic data processing system for the registration certificate shall be indicated:
a.In case of declaration of goods in the procedure of temporary admission - In the 3rd column of the "Import" section of the white main page (Cover) of the ATA Carnet (box) and in and in the "H.c" column of the "Import" (white) voucher (folding sheet);
b. In case of return (re-export) of the declared goods in the temporary admission procedure - in the 4th column of the "re-export" section of the white main page (cover) of the ATA Carnet and in the "H.d" column of the "re-export" (white color) voucher (Folding sheet);
c. In case of transit of goods through the customs territory of Georgia - in the 3rd column of the first part of the main page (transit) of the ATA Carnet "Transit" (blue) and in the "H.c" column of the "transit" (blue) voucher (Folding sheet).
The ATA book is removed from control by the customs authority of destination: on the page of the definite color, in the corresponding column is written the number "R" assigned by the electronic data processing system "eCustoms", the stamp of the customs authority "Removed from control" shall be affixed, which is signed and confirmed by an authorized employee of the customs authority with a personal number stamp or a round seal of the relevant structural unit/subdivision of the Customs Department.
Invoice
A Commercial Invoice (invoice, contract for the purchase of goods or commercial invoice) in international trade relations is a settlement document submitted by the exporter of the goods to the consignee and contains information about the parties to the transaction, name and description of the goods, value, quantity, weight, Harmonized system Commodity code (HS), shipping conditions.
The invoice must contain a signature confirming its authenticity. When transporting strategic goods, the invoice often lists the ECCN according to the dual-use item control list and controls measures of those items.
A commercial invoice is one of the mandatory documents that must be provided when moving goods at the customs border of Georgia and during customs clearance.
Waybill
https://www.jus.uio.no/lm/un.cmr.road.carriage.contract.convention.1956/doc.html
International Road transport waybill– (CMR) Is a document confirming the existence of an agreement on road transport.
According to Article 6 of the Convention on the International Carriage of Goods by Road, the waybill must contain the following information:
- Date and place of signing the waybill;
- Name and address of the sender;
- Name and address of the carrier;
- Place and date of receipt of goods, as well as place of delivery of goods;
- Name and address of the consignee;
- Characteristics of the cargo and type of packaging, in case of dangerous goods -
description of it in a generally accepted form;
- Number of packages, as well as their special marking marks and numbers;
- Gross weight of goods or quantity expressed in units of other size;
- Shipping costs (transport costs, additional costs, customs duties and other costs incurred from the moment of signing the contract until the moment of delivery of the goods;
- Mandatory instructions for customs and other formalities;
- A statement that the carriage is governed by the provisions of the above Convention, notwithstanding any reservation to the contrary;
A Waybill may also contain:
- A statement that reloading is prohibited;
- Fees, which the sender is obliged to pay;
- Commission amount "Payment upon delivery";
- Declaration of the value of the goods and the amounts representing the delivery interest rate;
- Shipper instructions for cargo insurance for the carrier;
- Agreed period during which the shipment must be completed;
- List of documents delivered to the carrier;
The parties may enclose in the attachment any data they deem in favor of the shipment.
International Road transport waybill– (CMR) is one of the mandatory documents to be submitted when moving at the customs border of Georgia and customs clearance.
Section 5. Transportation of strategic goods, as well as transportation of dangerous goods
5.1. General principles of international carriage of goods by road and permits and authorizations provided by international and bilateral agreements
The rules for the international carriage of goods, as well as dangerous goods by road through the territory of Georgia, are governed by the following regulations:
European Agreement Concerning the International Carriage of Dangerous Goods by Road (ADR)
- Protocol of the European Conference of Ministers of Transport-ECMT (in force for Georgia since August 3, 2000);
- Multilateral Agreement on Transport Corridor Europe Caucasus Asia-TRACECA (in force since May 23, 1999);
- Memorandum of Understanding on Facilitation of Road Transport of Goods (FRTG) in the BSEC Region
- Law of Georgia on Traffic;
- Ordinance of the Government of Georgia dated January 3, 2014 No. 32 “On Approval of the Technical Regulations on Rules for the Carriage of Goods by Vehicles”;
- Ordinance of the Government of Georgia dated August 11, 2017 No. 393 "On approval of the Technical Regulations on the maximum dimensions and determination of the permissible maximum mass of certain categories of motor vehicles “;
- Decree of the Government of Georgia No. 89 dated February 15, 2019 “On Approval of the Technical Regulations - “Rules for the Transportation of Dangerous Goods by Road”;
- Ordinance of the Government of Georgia dated February 7, 2018 №72 on “the Approval of the Technical Regulation - Rules for Transportation of Nuclear and Radioactive Substances”;
- Law of Georgia "Railway Code of Georgia";
- Order of the Minister of Transport and Communications of Georgia dated September 8, 2003 N52 on “the Approval of the Rules for the Carriage of Dangerous Goods by Rail”.
International road transport of goods through the territory of Georgia is carried out on the basis of the legislation of Georgia, international and intergovernmental agreements on international road traffic.
International carriage of goods by road can be of the following types:
Bilateral, when a loaded or empty vehicle moves from the country of registration towards Georgia and loaded or empty from Georgia to the destination of the country of registration of the vehicle, with the right to load/unload on the customs territory of Georgia;
a. Bilateral, when a loaded or empty vehicle moves from the country of its registration towards Georgia and loaded or empty from Georgia to the same country, with the right to load/unload on the customs territory of Georgia;
b. Transit, when a loaded or empty vehicle transits through the customs territory of Georgia in one direction and/or in the opposite direction, without the right of load and/or unload on the territory of Georgia;
c. Carriage from/to third country, when a loaded or empty vehicle moves from a third country which is not the country of registration of the vehicle, to Georgia and from Georgia to a third country, with the right to load/unload on the customs territory of Georgia;
Vehicles registered in a foreign country, empty or loaded, may move through the customs territory of Georgia using one of the following types of permits/authorizations.
1. Permit for international carriage of goods by road provided for by multilateral international agreements of Georgia (multilateral permit)
a. European Conference of Ministers of Transport (ECMT Permit, or
b. Black Sea Economic Cooperation (BSEC) Permit, or
c. Europe-Caucasus-Asia Transport Corridor (TRACECA) permit;
d. Authorization for international carriage of goods by road, which is exchanged by the competent authorities of Georgia and the partner country on the basis of a bilateral agreement.
e. Special authorization for international carriage of goods by road from the territory of Georgia (above the quota established on the basis of bilateral agreements).
Each international carriage of goods by road shall be carried out on the basis of one type of permit/authorization, unless otherwise provided by the legislation of Georgia.
Permits/authorizations for the international carriage of goods by road does not give the right of cabotage (a road transport operation where goods are loaded and unloaded at two separate points within one country by a vehicle, which is registered in another country).
When presenting a permit/authorization at the CCP or CCZ of Georgia, the driver is obliged to inform the customs authority about the type of transport operation that he must carry out, which can be performed by this permit/authorization.
ECMT[71]
The European Conference of Ministers of Transport (ECMT) is an interstate transport organization established at the Conference of Transport Ministers of sixteen European countries under the Brussels Protocol of 17 October 1953.
The ECMT is a forum where the transport ministers of the member states discuss transport-related issues and make common policy decisions for the rational and concerted development of the European transport system.
Since January 1, 2009, the following ECMT member states have participated in the quota system: Austria, Azerbaijan, Albania, Armenia, Belarus, Belgium, Bulgaria, Bosnia and Herzegovina, Hungary, Germany, Greece, Georgia, Denmark, Ireland, Spain, Italy, Latvia, Italy, Latvia. Liechtenstein, Luxembourg, North Macedonia, Malta, Moldova, Netherlands, Norway, Poland, Portugal, Russian Federation, Romania, Serbia, Slovakia, Slovenia, Great Britain, Turkey, Ukraine, Finland.
The ECMT currently has sixty-three member countries. Georgia has been a member of ECMT since June 1, 2000.
For ECMT purposes:
Third country means a country that does not participate in the ECMT quota system;
[71] https://www.itf-oecd.org/sites/default/files/docs/guide_2022_0.pdf
The country of registration is the country where the vehicle is registered. The country of registration must be indicated on the vehicle registration number plate;
Permit- is a valid document for the execution of a specified number of carriage of goods between member states within a specified period of time, accompanied by a duly drawn up Logbook.
Competent body - an agency or body in a member state which has the authority to carry out measures related to ECMT rules. The competent body in Georgia is the Ministry of Economy and Sustainable Development of Georgia, a legal entity under public law - the Land Transport Agency;
Logbook- is a registration document in the form of a book, which is an integral part of the licence and contains information about transport operations performed under the respective licence in chronological order including laden and unladen journeys. This information should be used for the control of the use of licenses.
International carriage- is journey by a laden or unladen vehicle whose points of departure and arrival are in two different Member countries, with or without transit through one or more Member or non-member countries;
Quota -is the number of licenses made available every year to an ECMT member states. The principles for the calculation of this quota are set up by the group on road transport and approved by the ministers.
ECMT Permits -are multilateral licenses, under which the International Transport Forum within the framework of the ITF/on the basis of the ECMT quota system transfers them to a transport company registered in a member state for hired or paid international road transport between ECMT member states, as well as for transit through one or more ECMT member states with vehicles registered in the ECMT member state.
Permits do not apply to transport operations between a member state and a third country. Permits are valid if the transport operation is carried out through a third country. If transit through a third country with ECMT permits is restricted, this may be possible through bilateral agreement or other modes of transport (eg rail).
ECMT permits are green in color and valid for a calendar year (from January 1 to December 31) and short-term ECMT permit is a yellow in color and are valid for 30 days.
The defined ECMT permits can only be used by vehicles of the following categories:
- "EURO IV safe" vehicle category (in this case, a special green stamp number "IV" is affix on the permit);
- "EURO V safe" vehicle category (in this case, a special green stamp number "V" is affix on the permit);
- "EURO VI safe" vehicle category (in this case, a special green stamp number "VI" is affix on the permit).
When carrying out international carriage of goods by road with an ECMT permit, the driver must have onboard a tractor vehicle the following documents:
- Logbook;
- ECMT Certificates- certificate of compliance with technical provisions concerning exhaust and noise emissions and safety requirements for lorry; the certificate of compliance with the safety requirements for the trailer or semi-trailer;
- The roadworthiness test for the motor vehicle and the trailer or semi-trailer;
- A document certifying the use of the vehicle on the basis of ownership and/or on the basis of a leasing agreement;
- Appropriate driver's license qualification;
- Vehicle registration certificate.
ECMT permit does not require the following types of transport operations (Liberalized transport):
1) The transport of goods by motor vehicles whose Total Permissible Laden Weight (TPLW), including trailers, does not exceed 6 tonnes, or when the permitted payload, including trailers, does not exceed 3.5 tonnes.
2) The transport of goods on an occasional basis, to or from airports, in cases where services are diverted.
3) The transport of vehicles, which are damaged or have broken down and the movement of breakdown repair vehicles.
4) Unladen runs by a goods vehicle sent to replace a vehicle, which has broken down in another country, and also the return run, after repair, of the vehicle that had broken down.
5) Transport of livestock in vehicles purpose-built or permanently converted for the transport of livestock and recognised as such by the Member countries' Authorities concerned.
6) Transport of spare parts and provisions for ocean-going ships and aircraft.
7) Transport of medical supplies and equipment needed for emergencies, more particularly in response to natural disasters and humanitarian needs.
8) Transport for non-commercial purposes of works and objects of art for fairs and exhibitions.
9) Transport for non-commercial purposes of properties, accessories and animals to or from theatrical, musical, film, sports or circus performances, fairs or fetes, and those intended for radio recordings, or for film or television production.
10) The transport of goods on own account.
11) Funeral transport.
12) Postal transport carried out as a public service.
13) Transfer of newly acquired vehicles without cargo to the place of their final destination.
BSEC[72]
The Black Sea Economic Cooperation (BSEC) is an international organization established on June 25, 1992 in 11 Black Sea countries (Albania, Armenia, Azerbaijan, Bulgaria, Georgia, Greece, Moldova, Romania, the Russian Federation, Turkey, and Ukraine) upon receipt of the Bosphorus Statement by the state leaders and the signing of the Istanbul Declaration. Serbia joined the BSEC in 2004 and Northern Macedonia in 2020, and currently has thirteen member countries in the Black Sea Economic Cooperation Organization.
[72] https://bsec-urta.org/download/bsec-permit-user-guide/
BSEC member countries cooperate in the fields of energy, economy and trade, tourism, environment, education, agriculture, customs, culture, transport and others.
In 2009, Albania, Armenia, Georgia, Moldova, Romania, Serbia and Turkey expressed their readiness to participate in the BSEC Permit project, which introduced the BSEC Multilateral permit International carriage of goods by road.
The BSEC permit authorizes the carrier to carry out a single round journey in transit (goods are neither loaded nor unloaded on the territory of Georgia) and/or bilateral (goods can be loaded or unloaded on the territory of Georgia) for international carriage of goods by road by means of transport registered in the Member State.
Carriers from Georgia, Albania, Moldova, Romania and Ukraine have the right to ship from/to third country with the BSEC permit, if this is stipulated by bilateral agreements.
The validity period of a BSEC permit is one calendar year from 1 January to 31 December, however, permits issued within the quota can be used until 31 January of the following calendar year.
The permit is printed in English and Russian.
The permitting body is LEPL - Land Transport Agency.
The BSEC Permit
-must be kept on board the vehicle and presented upon request to the representative of the relevant competent supervisory authority.
TRACECA[73]
[73] http://www.traceca-org.org/fileadmin/fm-dam/pdfs/Appendix_3.1_Guide__TRACECA_Permit_System_modif_eng.-1docx.pdf
TRACECA-Transport Corridor Europe-Caucasus-Asia is an international transport program involving the European Union and 12 member states of Eastern Europe, the Caucasus and Central Asia. The program aims to strengthen economic ties, trade and transport relations in the Black Sea Basin, the South Caucasus and Central Asia.
TRACECA was established in May 1993 on the basis of the Brussels Declaration with the participation of Georgia, Azerbaijan, Armenia, Kazakhstan, Kyrgyzstan, Turkmenistan and Uzbekistan. The project was soon joined by Ukraine, Moldova and Mongolia, in 2000 by Turkey, Romania and Bulgaria, and in 2009 by Iran.
In 2015, the competent ministries of six member states: Armenia, Georgia, Moldova, Romania, Turkey and Ukraine decided to adopt the TRACECA permit system for the international carriage of goods by road.
The same decision approved the technical document “TRACECA Multilateral Permit User Guide” which regulates the rules of operation of the permit system.
Every year the Permanent Secretariat issues the same number of TRACECA permit forms for each member country. The base permit quota for each country is 200 permit forms, which member countries distribute among carriers in accordance with national legislation.
TRACECA Permit
TRACECA permits are universal and are used for bilateral, transit and road transport between the participating countries of the system as well as to/from a third country.
In the case of transportation of goods by road with a TRACECA permit:
A member country of a major multilateral agreement is a party to a major multilateral agreement on international transport for the development of the Europe-Caucasus-Asia corridor (including countries not participating in the TRACECA multilateral permit system);
A member country to the TRACECA permit system is any country to a major multilateral agreement that participates in the TRACECA multilateral permit system;
A third country is a country that is not a party to a major multilateral agreement and a party to the TRACECA permit system.
The TRACECA permit is a multilateral permit that gives carriers the right to carry out bilateral, transit and road transport of goods to third countries on/through the territory of the countries participating in the TRACECA permit system for a certain period of time.
The TRACECA Permit is intended for single use and can be used for road transport with or without cargo, direct and return, with no more than two entries into each country of the TRACECA Permits system.
The TRACECA permit is universal and may be applied to perform bilateral, transot operations and haulage to/from third countries, as well as to combine them
TRACECA permits are valid from January 1 of the current year until January 31 of the following year.
Permit are filled in the computer in the official languages of the main multilateral agreements (Russian and English) on the basis of the information specified in the application and registration documents for the vehicle, in two copies (original and copy), of which the original is kept by the driver on board the vehicle during transportation.
Authorization on the International carriage of goods by road
Georgia ratified bilateral agreements on international road transport of goods with Armenia, Switzerland, Latvia, Greece, Azerbaijan, Lithuania, Romania, Uzbekistan, Russia, Turkmenistan, Germany, Kazakhstan, Ukraine, Ukraine, Kazakhstan, Ukraine, Ukraine, Moldova, Hungary, Poland, Slovakia, Slovenia, Estonia, Bosnia and Herzegovina.
Authorizations that the competent authority of Georgia and the partner country exchange on the basis of a bilateral agreement can be of the following types:
a. Single use bilateral/transit authorization (for bilateral/transit international road carriage of goods by road);
b. Single use authorization from/to third country (for international carriage of goods by road from/to third country)
c. Single-use universal authorization (for bilateral, transit and from/to third country international carriage of goods by road);
d. Multiple use authorization (bilateral, transit and from/to third country international carriage of goods by road);
Authorizations are issued to a specific carrier.
In case of international transportation of goods by road with a single use bilateral/transit permit, the type of transportation is determined before the start of transportation on/through the territory of Georgia. In the presence of the specified authorization, the carrier can carry out:
a. Bilateral transportation - from the country of registration of the vehicle, laden or unladen movement to Georgia and laden or unladen movement from Georgia to the country of registration (with right of load/ unload) or;
b. Transit - the implementation of two transportations through the territory of Georgia, by laden or unladen vehicle, without the right to load/unload in Georiga.
c. With a single use Authorization from/to a third country, it is possible to move laden or unladen vehicle from a third country to Georgia and from Georgia to a third country with the right to load/unload.
Bilateral agreements define the types of transportation that are also exempt from authorization.
According to bilateral agreements with some countries, different types of authorizations are used for international carriage of goods by road. for example:
The entry of an empty vehicle between Turkey and Georgia is subject to a special authorization, which is exchanged between the parties, and with a “bilateral/ transit authorization " it is possible:
- Entry with empty vehicle only and exit with loaded/empty cargo for belitary transport,- Or transit by laden or unladen vehicle.
A vehicle registered in Belarus may carry out only transit or bilateral or from/to third country transportation, using the "single universal bilateral, transit, from/to third country authorization" (BY);
Having a single universal (bilateral, transit, from/to a third country) authorization of Moldova (MD), a carrier can carry out the following transport operations:
- Only transit or bilateral or from/to third country, or
- Country of registration of the vehicle-Georgia-third country, or
- Third country –Georgia - country of registration of the vehicle.
Having a single universal (bilateral, transit, from/to a third country) authorization of Ukraine (UA), a carrier can carry out the following transportations:
- Only transit or bilateral or from/to third country , or
- Country of registration of the vehicle-Georgia-Third country, or
- Third country –Georgia - country of registration of the vehicle
As for the multiple universal (bilateral, transit, from/to a third country) authorization of Ukraine (UA), it is used for multiple bilateral, transit, from/to third countries transport operations.
Single use authorization for bilateral/transit transportation with at least Euro III Safe or at least Euro V Safe category vehicles between Georgia and Italy and single use authorization for bilateral/transit transportation with Georgian or Italian trailers registered in Georgia or Italy (marked "I");
The agreement signed between Georgia and Russia defines the type of " multiple use authorization (bilateral/ transit) by means of a vehicle registered in Russia at least Euro IV safe category (RU) which is used for multiple bilateral/transit transport operations.
Permit for international carriage of goods by road from the territory of Georgia (above the quota established on the basis of international agreements of Georgia)
If a vehicle registered abroad transports goods from Georgia and does not have an appropriate international permit for the carriage of goods by road, in accordance with the legislation of Georgia, the LEPL - Land Transport Agency issues a permit above quota established in accordance with the legislation of Georgia.
Permit for international carriage of goods by road from the territory of Georgia (above the quota established on the basis of international agreements of Georgia) entitles a foreign carrier to carry out one-time international transportation on the territory of Georgia with the right to load cargo and carry outside the territory of Georgia.
5.2. Customs procedures related to international carriage of goods by road
When a driver of a vehicle crosses the customs border and/or enters the CCZ, together with the ECMT permit, it is necessary to present:
a. ECMT certificates - documents certifying compliance with the technical and safety condition of a truck and/or trailer (semi-trailer) in accordance with the relevant rules of the United Nations Economic Commission for Europe (UNECE) and/or the provisions of the directives of the Council of Europe:
1) The certificates of compliance with technical provisions concerning exhaust and noise emissions and safety requirements for lorry and compliance with the safety requirements for the trailer or semi-trailer;
2) The roadworthiness test for the motor vehicle and the trailer or semi-trailer;
b. Log book - a set of registration sheets filled in in the name of the holder of the ECMT permit, in which, in chronological order, for each transportation, the work performed by the vehicle with loading and loading is recorded;
c. Document certifying the legal ownership of the vehicle by the carrier;
d. Document confirming labor management of the carrier;
In this case, it is the duty of the customs officer of the customs crossing point and/or customs clearance zone to check the correctness and conformity of the ECMT permit and associate certificates, the data recorded in the logbook, and the driver's legal ownership of the vehicle and the carrier.
After completing the documentary check, the customs officer fills in the electronic form of ECMT permit in the "unified electronic system of licenses, permits and certificates" (unified electronic system) and makes the appropriate markings;
At the request of the driver, the official of the customs authority shall confirm with a personal numbered stamp the information on the movement of the vehicle acrossing the customs border of Georgia in the appropriate column of the logbook.
In case of submission of BSEC or TRACECA permit by the driver of the vehicle moving at the customs border of Georgia, it is the duty of the customs officer of customs crossing point and/or customs clearance zone to check the correctness of the filling of the permit and accompanying documents. Indicate the type of international road transport operation to be carried out with a permit;
If the BSEC or TRACECA permit is submitted by a driver of a vehicle crossing the customs border of Georgia, the duty of the official of the CCPs/CCZs is to check the correctness of filling in the permit and accompanying documents, as well as indicate the type of international road transport that must be carried out with an above permits;
At the request of the driver, the official of the customs authority shall indicate the date and time of the movement of the vehicle on/through the customs territory of Georgia in the appropriate column of the material form of the permit and confirm this with a personal stamp.
In the case of a vehicle moving under the authorization provided by the bilateral agreements of Georgia at the customs border of Georgia, the customs officer of the customs crossing point and/or customs clearance zone shall verify the correctness of the authorization and accompanying documents.
In the case of moving a vehicle across the customs border of Georgia on the basis of a permit provided for by bilateral agreements of Georgia, an official of the customs authority of the CCP/CCZ checks the correctness of the permit and accompanying documents.
At the request of the driver, the date and time of the movement of the vehicle across the customs border of Georgia is indicated in the permit and confirmed by a stamp with a personal number.
If the vehicle has performed a transport operation stipulated by one of the types of permit/authorization, at the time of departure from the customs territory of Georgia, the official of the customs checkpoint closes the electronic form of the permit in the unified electronic system and corresponding permit/authorization is considered used.
In the case of a special permit for the international carriage of goods by road from the territory of Georgia (above the quota established by international agreements of Georgia), a customs official checks the validity and compliance of the permit presented in material form with the electronic one uploaded to the unified electronic system. At the request of the driver, in the appropriate column of the permit, he/she indicates the date and time of movement of the vehicle on/through the customs border of Georgia and confirms this with a stamp with a personal number.
If a driver engaged in the international carriage of goods by road with a vehicle registered in a foreign state fails to present the relevant permit/authorisation at the customs checkpoint upon entry/exit from the customs territory of Georgia, he/she shall be given a deadline for submitting the relevant permit/authorisation, which is 3 to 6 working days.
For violation of the rules for the implementation of international transport operations, an administrative offense report is drawn up, and the vehicle must be returned to the country of entry.
When carrying out international transportation of goods through a bilateral and/or from/to a third country, if an appropriate permit/authorization is not presented to the CCZ, such a vehicle will be allowed to carry out international transportation of goods only after the submission of the appropriate permit/authorization.
5.3. Strategic Goods as Dangerous Goods (in terms of transportation)[74]
[74] https://unece.org/transport/standards/transport/dangerous-goods/adr-2023-agreement-concerning-international-carriage
Often strategic goods are or may contain chemical, biological, radioactive and explosive substances, so their transportation can cause irreparable damage to human life and the environment. Due to their properties, such goods are included in the control lists of military and dual-use goods.
For example, ML3 and ML4 of the military control list include ammunition, explosives, bombs, torpedoes, rocket-propelled grenades, missiles and other explosive devices and charges;
ML7 includes chemicals and biologically toxic agents, mass control agents, radioactive materials, while ML8 includes energy materials and related substances, such as: explosives and their compounds, rocket fuels, pyrotechnics, aviation fuels and their precursors.
The dual use items control list includes natural radioactive materials, special fissile materials (0С001, 0С002, 1C012, 1C236), metal powders (1C002, 1C011, 1C240), rocket fuel and rocket fuel chemicals (1C111), high explosives, electric detonators, various types of explosives (1C239, 1A008), toxic chemicals and substances that can be used as precursors for production of the toxic chemical agents (1C350, 1C450), biological agents (1C351, 1C352, 1C353, 1C354).
Accordingly, Table A of the ADR agreement includes goods with dangerous properties, the rules for the carriage of which by road are provided for by this agreement.
Strategic goods in Table A are identified by the assigned UN number, hazard class, packing class, packing instructions and special provisions, as well as transport rules that must be observed during their transportation.
For example, consider the rules for the transport of certain chemical and biological agents and radioactive materials included in the control lists of military and dual-use items.
Chemicals
Almost all strategic chemicals are poisonous, irritant, corrosive, flammable or explosive. When transporting such chemicals and substances, transport documents, product labels and markings must contain full information about the name and hazardous properties of such products.
One such important document is the MSDS (material safety data sheet), a document issued by the chemical industry that illustrates technical information about the physical and chemical properties of a product.
The MSDS consists of sixteen sections that give the following basic information about a substance: name, unique CAS number (U.S. chemical reference service), manufacturer and shipper details, name of each ingredient in the product, CAS number and percentage ratio, physical and chemical condition and properties of the substance, toxic data, warning instructions, first aid measures, classification under the UN model regulations etc.
Chemicals may be transported in cisterns, opening tanks, container-cisterns, barrels, cans, cartons, sacks, gas cylinders, etc., in compliance with the provisions of the ADR agreement. Each individual package, outer package and vehicles must be labeled and marked in accordance with the recommendations of the Globally Harmonized System of Classification and Labelling of Chemicals (GHS) and the ADR agreement:
Each individual transport package, outer packaging and means of transport must be marked and labeled in accordance with the recommendations of the globally harmonized system of chemical classification and labeling (GHS) and the ADR agreement:
The exact name of the substance must be written on the inner and/or outer packaging, as well as the CAS number, the UN number and the hazardous placard indicating the dangerous goods;
Auto and rail cisterns, containers and other lorries must be marked with hazardous rhombus board / boards and orange board / boards.
Road and rail tankers, containers and vehicles must be marked with dangerous placards and orange plates in the front and rear of any vehicle transporting hazardous goods.
Here are some strategic chemicals shown in Table A of chapter 3.2 of ADR Agreement:
#tableId {null margin: 0 auto !important; }#tableId {null margin: 0 auto !important; }#tableId {null margin: 0 auto !important; }#tableId {null margin: 0 auto !important; }#tableId {null margin: 0 auto !important; }#assignedTableId-1706692665673 {margin-left: -0.25pt; margin: 0 auto !important; }UN
№
Name anddescription
3.1.2
Class
2.2
Classification
code
2.2
Packing group
2.1.1.3
Labels
5.2.2
Special provisions
3.3
Limited and excepted quantities
Packaging
Portable tanks and bulk containers
Packing instructions
4.1.4
Special packing provisions
4.1.4
Mixed packaging provisions
4.1.10
Instructions
4.2.5.2.
7.3.2
Special provisions
4.2.5.3
3.4.6
3.5.1.2
(1)
(2)
(3a)
(3 b)
(4)
(5)
(6)
(7a)
(7 b)
(8)
(9a)
(9 b)
(10)
(11)
1076
Phosgene
2
2TC
2.3
+8
0
E0
P200
MP9
1613
HYDROCYANIC ACID, AQUEOUS
SOLUTION (HYDROGEN
CYANIDE, AQUEOUS SOLUTION)
with not more than 20% hydrogen
cyanide
6.1
TF1
I
6.1
+3
48
0
E5
P601
MP8
MP17
T14
TP2
1614
HYDROGEN CYANIDE,STABILIZED, containing less than
3% water and absorbed in a porous
inert material
6.1
TF1
I
6.1
+3
603
0
E5
P099
P601
RR10
MP2
1680
POTASSIUM CYANIDE, SOLID
6.1
T5
I
6.1
0
E5
P002
IBC07
MP18
T6
TP33
1689
SODIUM CYANIDE, SOLID
6.1
T5
I
6.1
0
E5
P002
IBC07
MP18
T6
TP33
2810
TOXIC LIQUID (Zarine, Iprites, Amiton, VX), ORGANIC, N.O.S.
6.1
T1
I
6.1
274
315
614
0
E5
P001
MP8
MP17
T14
TP2
TP27
2811
TOXIC SOLID, ORGANIC, N.O.S. (e.g.3-Quinuclidinyl benzylate (BZ)
6.1
T2
I
6.1
274
614
0
E5
P002
IBC07
MP18
T6
TP33
0484
CYCLOTETRAMETHYLENETETRA-
NITRAMINE (HMX;
OCTOGEN),DESENSITIZED
1
1.1D
1
0
E0
P112 (b)
P112 (c)
MP20
1385
SODIUM SULPHIDE,ANHYDROUS or SODIUM
SULPHIDE with less than 30% water
of crystallization
4.2
S4
II
4.2
504
0
E2
P410
IBC06
MP14
T3
TP33
Biological Agents
The dual-use control list includes the following types of biological agents: human and animal pathogens (viruses, bacteria, fungi), zoonoses and toxins, and plant pathogens (viruses, bacteria, fungi) are classified in ECCNs 1C351 and 1C354.
According to the ADR agreement, infectious substances belong to class 6.2 and are assigned to UN numbers 2814, 2900, 3291 and 3373, and toxins to 3172 and 3462.
Here are some strategic infectious substances listed in Table A of chapter 3.2 of the ADR Agreement:
#tableId {null margin: 0 auto !important; }#tableId {null margin: 0 auto !important; }#tableId {null margin: 0 auto !important; }#tableId {null margin: 0 auto !important; }#tableId {null margin: 0 auto !important; }#assignedTableId-1706692683870 {margin-left: 5.3pt; margin: 0 auto !important; }UN
№
Name anddescription
3.1.2
Class
2.2
Classification
code
2.2
Packing group
2.1.1.3
Labels
5.2.2
Special provisions
3.3
Limited and excepted quantities
Packaging
Portable tanks and bulk containers
Packing instructions
4.1.4
Special packing provisions
4.1.4
Mixed packaging provisions
4.1.10
Instructions
4.2.5.2.
7.3.2
Special provisions
4.2.5.3
3.4.6
3.5.1.
2
(1)
(2)
(3a)
(3 b)
(4)
(5)
(6)
(7a)
(7 b)
(8)
(9a)
(9 b)
(10)
(11)
2814
INFECTIOUS SUBSTANCE,AFFECTING HUMANS
6.2
I1
6.2
318
0
E0
P620
MP5
2814
INFECTIOUS SUBSTANCE,AFFECTING HUMANS, in
refrigerated liquid nitrogen
6.2
I1
6.2
+2.2
318
0
E0
P620
MP5
2814
INFECTIOUS SUBSTANCE,AFFECTING HUMANS (animal material only)
6.2
I1
6.2
318
0
E0
P620
MP5
BK1
BK2
2900
INFECTIOUS SUBSTANCE, AFFECTING ANIMALS only
6.2
I2
6.2
318
0
E0
P620
MP5
2900
INFECTIOUS SUBSTANCE,AFFECTING ANIMALS only, in
refrigerated liquid nitrogen
6.2
I2
6.2
+2.2
318
0
E0
P620
MP5
2900
INFECTIOUS SUBSTANCE,AFFECTING ANIMALS only
(animal material only)
6.2
I2
6.2
318
0
E0
P620
MP5
BK1
BK2
3373
BIOLOGICAL SUBSTANCE,CATEGORY B
6.2
I4
6.2
319
0
E0
P650
T1
TP1
3373
BIOLOGICAL SUBSTANCE,CATEGORY B (animal material
only)
6.2
I4
6.2
319
0
E0
P650
T1
BK1
NK2
TP1
3172
TOXINS, EXTRACTED FROM LIVING SOURCES, LIQUID, N.O.S.
6.1
T1
I
6.1
210
274
0
E5
P001
MP8
MP17
3172
TOXINS, EXTRACTED FROM LIVING SOURCES, LIQUID, N.O.S.
6.1
T1
II
6.1
210
274
100 ml
E4
P001
IBC02
MP15
3462
TOXINS, EXTRACTED FROM LIVING SOURCES, SOLID, N.O.S.
6.1
T2
I
6.1
210
274
0
E5
P002
IBC07
MP18
T6
TP33
3462
TOXINS, EXTRACTED FROM LIVING SOURCES, SOLID, N.O.S.
6.1
T2
II
6.1
210
274
500 g
E4
P002
IBC08
B4
MP10
T3
TP33
3462
TOXINS, EXTRACTED FROM LIVING SOURCES, SOLID, N.O.S.
6.1
T2
III
6.1
210
274
5 kg
E1
P002
IBC08
R001
B3
MP10
T1
TP33
According to Section 2.2.6.2 of the ADR agreement, infectious substances are divided into categories A and B for shipping purposes.
Category A is an infectious substance that is very dangerous and can cause permanent disability, life-threatening or fatal disease, and even death in humans and animals. Category Infectious substances are assigned to UN2814 and UN2900.
Category B infectious substances are assigned to UN3373.
Biological agents must be transported in such packaging to prevent damage and leakage and must be specially marked.
In accordance with the P620 packing instruction of section 4.1.4 of ADR Agreement given in column 8 of Table A, a Category A infectious substance must be carried in the following containers:
A. The inner container shall consist of three components:
(i) Hermetically sealed primary container;
(ii) Hermetically sealed secondary container; and
(iii) In addition to solids, sufficient absorbent material to absorb all of the contents placed between the primary container and the secondary container.
If several primary containers are placed in one secondary container, they must be packed individually or separated from each other to avoid contact with each other;
B. Rigid outer packaging, all the smallest external dimensions of which must be less than 100 mm.
Biological materials can be transported at or above ambient temperature, refrigerated or frozen, in liquid nitrogen, or in lyophilized form.
Packaging requirements for Category B infectious substances are defined in accordance with packaging instruction P650 of Section 4.1.4 of ADR agreement.
Category A infectious substance packaging must bear the following hazardous placard
Category B infectious substances must bear the following hazardous placard
The toxins must bear the following hazardous placard
Radioactive Substances
The dual-use items control list includes the following types of strategic radioactive materials and equipment containing radioactive materials:
- Nuclear reactor Heat-insulating elements containing nuclear fuel; (0A001),- Natural uranium” or “depleted uranium” or thorium in the form of metal, alloy, chemical compound or concentrate and any other material containing one or more of the foregoing (0С001)
- Special Fissile Materials (plutonium-239, uranium-233, uranium, enriched with 235 or 233 isotopes and any other material containing the above) (0C002);
- Plutonium in any form with a plutonium isotopic assay of plutonium-238 of more than 50 % by weight and “Previously separated” neptunium-237 in any form (1C012);
- Alpha-emitting radionuclides having an alpha half-life of 10 days or greater but less than 200 years, in elemental form of in the form of compound or mixture, having a total alpha activity of 37 GBq/kg (1 Ci/kg) or greater or Products or devices containing any of the foregoing. Such radionuclides are: Actinium-225 (225 Ac), Actinium-227 (227 Ac), Californium-253 (253 Cf), Curium-240 (240 Cm), Curium-241 (241 Cm, Curium-242 (242 Cm), Curium-243 (243 Cm), Curium-244 (244 Cm), Einsteinium-253 (253 C), Einsteinium-254 (254 C), Gadolinium-148 (148 Cd), Plutonium-236 (236 CU), Plutonium-238 (238 Pu), Polonium-208 (208 Po), Polonium-209 (209 Po), Polonium-210 (210 Po), Radium-223 (223 Ra), Thorium-227 (227 Th), Thorium-228 (228 Th), Uranium-230 (230 U), Uranium-232 (232 U)) ( ECCN 1C236);
- Radium-226 (226Ra), radium-226 alloys, radium-226 compounds, mixtures containing radium-226, manufactures thereof, and products or devices less than 0,37 GBq (10 millicuries) of radium-226 (ECCN 1C237);
- Tritium, tritium compounds and mixtures (ECCN 1C235).
In order to regulate the transport of radioactive materials, the United Nations International Atomic Energy Agency (IAEA) has developed the IAEA norms - specific safety requirements - (IAEA Safety Standards Series No. SSR-6 (Rev.1)) - "Rules for the Safe Carriage of Radioactive Materials", which is a mandatory international standard for the transport of radioactive materials[75].
[75] https://www.iaea.org/publications/12288/regulations-for-the-safe-transport-of-radioactive-material
These rules, which must be observed during the transport of radioactive materials to protect people, property and the environment from harmful ionizing radiation, are based on:
- Measures to contain radioactive materials;
- Dose monitoring of ionizing radiation;
- Measures to reduce and prevent risks;
The measures taken to prevent damage to the packaging during transportation are achieved:
- By differentiating the regulatory characteristics of the package design, depending on the limits of the contents in vehicles and packages and the hazardous properties of the radioactive material being transported;
- By defining the package design and operational requirements according to the characteristics of the radioactive material;
- By administrative control over compliance with the requirements; and
- By defining emergency planning and preparedness measures to protect people, property and the environment.
The IAEA Transport Regulations has established the rules for the safe transport of radioactive materials are based on the rules for the carriage of radioactive materials under the ADR agreement.
3.2. Table A of the ADR Agreement shows the following radioactive materials and the rules for their transport:
#tableId {null margin: 0 auto !important; }#tableId {null margin: 0 auto !important; }#tableId {null margin: 0 auto !important; }#tableId {null margin: 0 auto !important; }#tableId {null margin: 0 auto !important; }#assignedTableId-1706692809323 {null margin: 0 auto !important; }UN
№
Name anddescription
3.1.2
Class
2.2
Classification
code
2.2
Packing group
2.1.1.3
Labels
5.2.2
Special provisions
3.3
Limited and excepted quantities
Packaging
Portable tanks and bulk containers
Packing instructions
4.1.4
Special packing provisions
4.1.4
Mixed packaging provisions
4.1.10
Instructions
4.2.5.2.
7.3.2
Special provisions
4.2.5.3
3.4.6
3.5.1.
2
(1)
(2)
(3a)
(3 b)
(4)
(5)
(6)
(7a)
(7 b)
(8)
(9a)
(9 b)
(10)
(11)
2908
RADIOACTIVE MATERIAL, EXCEPTED PACKAGE - EMPTY PACKAGING
7
290
0
E0
See 1.7
See.
4.1.9.1.3.
2909
RADIOACTIVE MATERIAL, EXCEPTED PACKAGE - ARTICLES MANUFACTURED
FROM NATURAL URANIUM or DEPLETED URANIUM or NATURAL THORIUM
7
290
0
E0
See 1.7
See.
4.1.9.1.3
2910
RADIOACTIVE MATERIAL, EXCEPTED PACKAGE - LIMITED QUANTITY OF
MATERIAL
7
290
325
0
E0
See 1.7
See.
4.1.9.1.3
2911
RADIOACTIVE MATERIAL, EXCEPTED PACKAGE - INSTRUMENTS or ARTICLES
7
290
0
E0
See 1.7
See.
4.1.9.1.3
2912
RADIOACTIVE MATERIAL, LOW SPECIFIC ACTIVITY (LSA-I),non fissile or fissile-excepted
7
7X
172
317
325
0
E0
See. 2.2.7
And 4.1.9
See.
4.1.9.1.3
T5
TP4
2913
RADIOACTIVE MATERIAL, SURFACE CONTAMINATED OBJECTS
(SCO-I or SCO-II), non fissile or fissile-excepted
7
7X
172
317
336
0
E0
See. 2.2.7
And 4.1.9
See.
4.1.9.1.3
2915
RADIOACTIVE MATERIAL, TYPE A PACKAGE, non-special form, non fissileor fissileexcepted
7
7X
172
317
325
0
E0
See. 2.2.7
And 4.1.9
See.
4.1.9.1.3
2916
RADIOACTIVE MATERIAL, TYPE B(U) PACKAGE, non fissile or fissile-excepted
7
7X
172
317
325
337
0
E0
See. 2.2.7
And 4.1.9
See.
4.1.9.1.3
2917
RADIOACTIVE MATERIAL, TYPE B(M) PACKAGE, non fissile orfissile-excepted
7
7X
172
317
325
0
E0
See. 2.2.7
And 4.1.9
See.
4.1.9.1.3
2919
RADIOACTIVE MATERIAL, TRANSPORTED UNDER SPECIAL ARRANGEMENT, non
fissile or fissile-excepted
7
7X
172
317
325
0
E0
See. 2.2.7
And 4.1.9
See.
4.1.9.1.3
2977
RADIOACTIVE MATERIAL, URANIUM HEXAFLUORIDE, FISSILE
7
7X
+ 7E
+8
172
0
E0
See. 2.2.7
DA.4.19
See.
4.1.9.1.3
2978
RADIOACTIVE MATERIAL, URANIUM HEXAFLUORIDE, non fissile orfissile-excepted
7
7X
+8
172
317
0
E0
See. 2.2.7 and4.19
See.
4.1.9.1.3
3321
RADIOACTIVE MATERIAL, LOW SPECIFIC ACTIVITY (LSA-II),non fissile or fissile-excepted
7
7X
172
317
325
336
0
E0
See. 2.2.7
And 4.1.9
See.
4.1.9.1.3
T5
TP4
3322
RADIOACTIVE MATERIAL, LOW SPECIFIC ACTIVITY (LSA-III),non fissile or fissile-excepted
7
7X
172
317
325
336
0
E0
See. 2.2.7
And 4.1.9
See.
4.1.9.1.3
T5
TP4
3323
RADIOACTIVE MATERIAL, TYPE C PACKAGE, non fissile or fissile-excepted
7
7X
172
317
325
0
E0
See. 2.2.7
And 4.1.9
See.
4.1.9.1.3
3324
RADIOACTIVE MATERIAL, LOW SPECIFIC ACTIVITY (LSA-II), FISSILE
7
7X
+ 7E
172
326
336
0
E0
See. 2.2.7
And 4.1.9
See.
4.1.9.1.3
3325
RADIOACTIVE MATERIAL, LOW SPECIFIC ACTIVITY, (LSA-III), FISSILE
7
7X
+ 7E
172
326
336
0
E0
See. 2.2.7
And 4.1.9
See.
4.1.9.1.3
3326
RADIOACTIVE MATERIAL, SURFACE CONTAMINATED OBJECTS
(SCO-I or SCO-II), FISSILE
7
7X
+ 7E
172
336
0
E0
See. 2.2.7 and 4.1.9
See.
4.1.9.1.3
3327
RADIOACTIVE MATERIAL, TYPE A PACKAGE, FISSILE, non-special form
7
7X
+ 7E
172
336
0
E0
See. 2.2.7
And 4.1.9
See.
4.1.9.1.3
3328
RADIOACTIVE MATERIAL, TYPE B(U) PACKAGE, FISSILE
7
7X
+ 7E
172
326
337
0
E0
See. 2.2.7
And 4.1.9
See.
4.1.9.1.3
3329
RADIOACTIVE MATERIAL, TYPE B(M) PACKAGE, FISSILE
7
7X
+ 7E
172
326
337
0
E0
See. 2.2.7
And 4.1.9
See.
4.1.9.1.3
3330
RADIOACTIVE MATERIAL, TYPE C PACKAGE, FISSILE
7
7X
+ 7E
172
326
0
E0
See. 2.2.7 and 4.1.9
See.
4.1.9.1.3
3331
RADIOACTIVE MATERIAL, TRANSPORTED UNDER SPECIAL ARRANGEMENT,FISSILE
7
7X
+ 7E
172
326
0
E0
See. 2.2.7 and 4.1.9
See.
4.1.9.1.3
3332
RADIOACTIVE MATERIAL, TYPE A PACKAGE, SPECIAL FORM, non fissile orfissileexcepted
7
7X
172
317
0
E0
See. 2.2.7
And 4.1.9
See.
4.1.9.1.3
3333
RADIOACTIVE MATERIAL, TYPE A PACKAGE, SPECIAL FORM, FISSILE
7
7X
+ 7E
172
0
E0
See. 2.2.7
And 4.1.9
See.
4.1.9.1.3
According to the ADR agreement, radioactive materials belong to the class 7 of dangerous goods.
Radioactive material is assigned a UN number depending on the level of activity of the radionuclides contained in the package, whether or not they are fissile, the type of package used for transport, the nature and form of the contents of the package, or special conditions regulating shipping operations.
Accordingly, radioactive materials are divided into:
- Low specific activity materials (LSA),- A surface contaminated objects (SCO)
- Special form of radioactive materials (either a single solid piece or must be contained in a sealed capsule that can be opened only by destroying the capsule to qualify as special form), and are classified according to the following types of packaging:
a. Excepted packages- used for very small quantities of radioactive material and do not require external marking.
b. Industrial packages- used to transport low-specific activity (LSA) material or surface-contaminated objects (SCO), for example low-activity naturally radioactive ores;
c. Type A packaging- designed for the safe transport of relatively small quantities of radioactive materials;
d. Type B packaging- used to transport larger amounts of radioactive materials and are designed to withstand the effects of severe accidents.
Radioactive materials and their packaging must comply with the requirements of chapter 6.4 of ADR agreement, for example:
The amount of radioactive material in the package must not exceed the established limit; All types of packaging must be designed with weight, volume and shape in mind to ensure easy and safe delivery. In addition, the design of the package must be such that it can be properly secured to the vehicle during transport.
All types of packaging must be able to withstand any acceleration, vibration or vibrational resonance that may occur under normal conditions of transport without compromising the effectiveness of the various locking devices of the container or without compromising the integrity of the package as a whole.
In particular, bolts and other fastening details must be designed so that they cannot be loosened or removed arbitrarily, even after repeated use.
The material of the packaging and any element or construction must be physically and chemically compatible with each other and with the radioactive contents. It is necessary to take into account their reaction under the effect of radiation.
For example: All valves from which radioactive contents may come out must be must be secured against tampering.
The documents for the carriage of goods of class 7 must indicate:
- The name and symbol of each radionuclide, or, in the case of radionuclide compounds, their corresponding general description or list of the most limiting nuclides;
- Description of physical and chemical forms of materials;
- Maximum activity of radioactive contents during shipment;
Packaging category (I-white, II-yellow, III-yellow);
Transport index only for categories II-yellow, III-yellow (transport index is the magnitude of the radiation dose at a distance of 1 m from the surface of the package).
When transporting radioactive materials, the packaging must be marked with the following hazardous placards:
The number 7 referring to the class 7 of dangerous goods, must be indicated on two opposite sides of the package.
Correlation Table of ADR Regulated Dangerous Goods with Military and Dual-Use Items
#tableId {null margin: 0 auto !important; }#tableId {null margin: 0 auto !important; }#tableId {null margin: 0 auto !important; }#tableId {null margin: 0 auto !important; }#tableId {null margin: 0 auto !important; }#assignedTableId-1706692881953 {width: 423.8pt; border: none; margin: 0 auto !important; }UN №
Description
CAS №
ECCN
HS code
0030
0255
0456
Electricallydriven explosive detonators
1A007*.b
3603 00 900 00
0059
0439
0440
0441
Charges withoutcumulative detonation
1A008.a
3602 00 000 00
0065
0102
0104
0106
0107
0257
0289
0290
0367
0408-0410
Detonating cord
1A008.c*
3603 00 100 00
3603 00 900 00
2032
Inhibited RedFuming Nitric Acid (IRFNA)
8007-58-7
1C111.a.3.e
2808 00 000 00
0072, 0072
RDX
cyclonite, hexogen,121-82-4
ML
2933 69 100 00,360200 000 00
0075
Diethylene glycoldinitrate (DEGDN)
693-21-0
1C111.c.5
2909 49 800 00
0208
Tetryl, NitramineMethyl(2,4,6-trinitrophenyl)nitramide,479-45-8
ML
2921 42 009 00,360200 000 00
0226, 0484
HMX, octogen,CYCLOTETRAMETHYLENETETRANITRAMINE
2691-41-0
ML
2933 69 800 00
360200 000 00
0282
Nitroguanidine(NQ)
556-88-7
1C011.d
2925 29 000 00
2929 90 000 00
3602 00 000 00
0392
HNS,HEXANITROSTILBENE
20062-22-0
ML
2904 20 000 00
3602 00 000 00
0402, 1442
AP, AMMONIUMPERCHLORATE
7790-98-9
ML
2829 90 100 00
3602 00 000 00
0489
DINITROGLYCOLURIL(DINGU)
55510-04-8
ML
2933 99 800 09;
3602 00 000 00
0490
NITROTRIAZOLONE(NTO)
932-64-9
ML
2933 99 800 09;
3602 00 000 00
1032
1160
Dimethylamine
124-40-3
1C350.16
2921 11 001 00
1046
Helium-3 (3He)
7440-59-7
1C232
2845 40 000 00
1051
Hydrogen cyanide
74-90-8
1C450.a.6
2811 12 000 00
1052
1790
Hydrogen fluoride
7664-39-3
1C350.24
2811 11 000 00
1067
Nitrogen dioxide
10102-44-0
1C111.a.3.b
2811 29 300 00
1067
Dinitrogentetroxide
10544-72-6
1C111.a.3.b
2811 29 300 00
1975
Mixed Oxides ofNitrogen (MON)
1C111.a.3.d
2811 29 300 00
2811 29 900 00
1076
Phosgene:Carbonyl dichloride
75-44-5
1C450.a.4
2812 11 000 00
1135
2-Chloroethanol
107-07-3
1C350.15
2905 59 980 00
1154
Diethylamine
109-89-7
1C350.64
2921 19 500 00
1158
Di-isopropylamine
108-18-9
1C350.48
2921 19 990 00
1160
DIMETHYLAMINE
124-40-3
1C350.16
2921 11 001 00
1163
UNSYMMETRICAL DIMETHYLHYDRAZINE
57-14-7
ML
2928 00 900 00
1244
Monomethylhidrazine
60-34-4
2928 00 900 00
1336
Nitroguanidine(NQ)
556-88-7
1C011.d
2925 29 000 00
2929 90 000 00
3602 00 000 00
1340
Phosphoruspentasulphide
1314-80-3
1C350.47
2813 90 100 00
1358,2008
Zirconium powder
7440-67-7
1C011.a,1C111.a.2.a
ML
8109 21 000 00
8109 29 000 00
2814
Human pathogens
1C351
3002 90 500 00
3002 90 900 00
2900
Animal pathogens
1C351
3002 90 500 00
3002 90 900 00
3373
Viruses
1C351
3002 90 500 00
3002 90 900 00
3172
"Toxins"and "sub-unit of toxins" thereof
1C351.d
3002 90 500 00
3002 90 900 00
3245
Genetic elementsand genetically modified organisms
1C353
3002 90 500 00
3002 90 900 00
1380
Pentaborane
19624-22-7,18433-84-6
ML
2850 00 200 00
1385
Sodium sulphide
1313-82-2
1C350.50
2830 10 000 00
1396
SphericalAluminum powder
7429-90-5
1C111.a.1
ML
7603 10 000 00
7603 20 000 00
1401
Calcium
7440-70-2
1C227
2805 12 000 00
1415
Lithium-6
14258-72-1
1C233
2845 30 000 00
1418
Magnesium powder
7439-95-4
1C011.a
1C111.a.2.c
ML
8104 30 000 00
1467
Guanidine nitrate
506-93-4
1C011.c
2925 29 000 00
1560
Arsenictrichloride
7784-34-1
1C350.31
2812 19 900 00
1567
Beryllium powder
7440-41-7
1C111.a.2.b
ML
8112 12 000 00
1580
Chloropicrin:Trichloronitromethane
76-06-2
1C450.a.7
2904 91 000 00
1581
1582
1583
1589
Cyanogen chloride
506-77-4
1C450.a.5
2853 10 000 00
1614
3294
Hydrogen cyanide
74-90-8
1C450.a.6
2811 12 000 00
1680
3413
Potassium cyanide
151-50-8
1C350.40*
2837 19 000 00
1689
3414
Sodium cyanide
143-33-9
1C350.45*
2837 11 000 00
1690
3415
Sodium fluoride
7681-49-4
1C350.43
2826 19 100 00
1694
α-bromobenzylcyanide,(RS)-2-bromo-2-phenylacetonitrile
5798-79-8
ML
2926 90 200 00
1697
3416
2-Chloro-1-phenylethanone
(Chloroacetophenone)
532-27-4
ML
2914 79 000 00
1727
2817
Ammonium hydrogenfluoride or ammonium bifluoride
1341-49-7
1C350.42
2826 19 900 00
1749
Chlorinetrifluoride (ClF3)
7790-91-2
1C238
2812 90 000 00
1790
Hydrogen fluoride
7664-39-3
1C350.24
2811 11 000 00
1806
Phosphoruspentachloride
10026-13-8
1C350.38
2812 14 000 00
1809
Phosphorustrichloride
7719-12-2
1C350.7
2812 13 000 00
1810
Phosphorusoxychloride
10025-87-3
1C350.2
2812 12 000 00
1811
3421
Potassiumbifluoride
7789-29-9
1C350.41
2826 19 900 00
1812
3422
Potassiumfluoride
7789-23-3
1C350.14
2826 19 900 00
1828
Sulphurdichloride
10545-99-0
1C350.52
2812 16 000 00
1828
Sulphurmonochloride
10025-67-9
1C350.51
2812 15 000 00
1836
Thionyl chloride
7719-09-7
1C350.9
2812 17 000 00
1849
Sodium sulphide
1313-82-2
1C350.50
2830 10 000 00
1868
Decaborane
7702-41-9
ML
2850 00 200 00
1869
Magnesium
7439-95-4
1C228
8104 11 000 00
1921
Propyleneimine
75-55-8
ML
2925 29 000 00
2933 99 800 09
1957
Deuterium
7782-39-0
0C003
2845 90 100 00
1975
Mixed oxides ofnitrogen
10544-73-7
10102-44-0 10102-03-1
1C111.a.3.d
2811 29 300 00
2029
2030
Hydrazine
302-01-2
ML
2825 10 000 00
2032
Inhibited redfuming nitric acid
8007-58-7
ML
2808 00 000 00
2321
1,3,5-Trichlorobenzene
108-70-3
ML
2903 99 800 00
2323
Triethylphosphite
122-52-1
1C350.30
2920 24 000 00
2329
Trimethylphosphite (TMP)
121-45-9
1C350.8
2920 23 000 00
2382
Symmetricaldimethyl hydrazine
540-73-8
ML
2928 00 900 00
2421
Dinitrogentrioxide
10544-73-7
1C111.a.3.a
2811 29 300 00
2439
Sodium bifluoride
1333-83-1
1C350.44
2826 19 100 00
2674
Sodiumhexafluorosilicate
16893-85-9
1C350.62
2826 90 800 00
2686
Diethylaminoethanol
100-37-8
1C350.49
2922 19 000 00
2977
2978
Radioactivematerial: uranium hexafluoride (UF6)
7783-81-5
0C001 0C002
2844 10 300 00
Section 6. Risk Management System for Goods Subject to Customs Clearance.
Risk management system
The purpose of using the customs risk management system is to increase the efficiency of customs control, optimize material and human resources, and facilitate foreign trade by simplifying customs procedures. Customs control and formalities for goods subject to customs supervision are carried out by the customs authority via risk management system. Instruction on “the Rules for Implementing Customs Risks in the Revenue Service” is approved by the order №3722 of the Head of the Revenue Service dated February 21, 2018.
In order to control the management of customs risks, the Revenue Service has established a commission, the composition of which and the rules for the implementation of customs risk management are approved by the Revenue Service. The Commission supervises customs risk management, evaluates its effectiveness at least twice a year, and develops and considers proposals for improving the risk management policy.
Risk - any action or event that may affect the quality of customs control and/or create a risk of violation of the requirements of the legislation of Georgia when moving goods and/or during customs clearance.
Risk management comprises the definition of risk management policy and risk management strategy, risk identification, analysis and evaluation, development and use of risk profiles. Risk identification and creation of risk profiles in the Customs Department is carried out by the Customs Risk Management Division. Various structural units/subdivisions of the Customs Department systematically process the information related to the risks in their field of activity and provide this information to the Risk Management Division. Any employee of the Customs Department is authorized to provide information about the potential risk to the Division. Head/ Deputy Head of Customs Risk Management Division acts as a risk manager. Risk management is fully automated in the electronic data system "eCustoms" and/or the tax administration information system "Oracle" through the built-in risk management system.
Risk Identification
Risk identification includes:
a. Determination of the area/direction to which the risk management system should respond;
b. Identifying the specific circumstances under which or during which an action or event occurs;
c. Definition of risk;
d. Determination of the risk owner .
An assessment is carried out to respond to the identified risk. Identified risks will be assessed (classified) according to risk priority and volume. Risk priority is determined taking into account its probability and expected consequences, for which:
a. Each risk is assigned a coefficient of "probability" (from 1 to 3) and "outcome" (from 1 to 3), respectively;
b. The "significance" of each risk is estimated by multiplying the "probability" and "outcome" coefficients;
c. Risk whose "significance" has been assessed as relatively high will be considered as a priority compared to less significant risk.
The scope of the risk is defined in order to determine the risk owner, for which the risks are divided into national and local risks. The identified risks and the results of their analysis are reflected in the "Identified Customs Risk Register", which is generated electronically and used to guide the risk management process. Based on the risks registered in the "Identified Customs Risk Register", risk profiles are developed.
The risk profile consists of the following three main components:
a. From certain data (risk indicators or risk-specific details) that make it possible to evaluate the task:
1. Risk criteria, such as specific commodity code, country of origin, country of consignment, cost, importer/exporter, vehicle, reason for staying in the customs territory, financial consequences, financial situation of the trader/person, etc .;
2. Period during which the profile is active;
3. Scope of risk specific to the structural units of the Customs Department (land border, airport, port, border crossing point, customs clearance zone, etc.);
4. Required resources, available resources, etc .;
b. From specific measures to be taken to respond to the risk and recommendations on how to conduct the audit;
c. From the frequency of use of the risk profile, which is determined by analyzing the probability and priority of the risk, based on statistical data and analysis of operations performed in the past period.
The risk profile is approved by the risk manager in agreement with the risk owner.
The Risk Owner
The risk owner is determined by the scope of the risk and it can be:
a) National risk owner - Head of Customs Department/Deputy Head/Head of Division;
b) Local risk owner- the head of the structural unit of the Customs Crossing Point or Customs Clearance Zone.
The risk owner participates in the process of creating, modifying and deleting risk profiles and is responsible for managing the consequences of the risk and control mechanisms in the area of his competence; If the declared goods match the risk profile, the corresponding customs declaration corridor for goods registered in the system is determined, which means:
a. "Green Corridor" - the release of goods without inspection of declaration and transport documents and inspection of goods, which does not exclude the implementation of customs control measures in individual cases;
b. "Blue corridor" - release of goods without verification of declaration and transport documents and inspection of goods, subject to the necessary post-release control, which may include checking the customs value of goods and / or import duties and / or determining the HS code and/or checking the correctness of the quantity of goods or the number of types of goods and/or compliance with the requirements of the legislation of Georgia related to prohibitions and restrictions imposed on goods;
c. "Yellow corridor" - Clearance of goods without inspection of goods, full or partial verification of declarations and accompanying documents;
d. "Red Corridor" - clearance of goods by inspection of declared goods with or without full verification of the declaration and accompanying documents.
The declarant will be notified electronically about the measures to be taken.
Post-Audit control of goods (post-audit)
The purpose of the post-audit control of the release of goods is to verify compliance with the requirements of the legislation of Georgia related to the collection of import duties and/or the customs value of goods, and/or the quantity of goods and/or the accuracy of the HS code and/or prohibitions and restrictions on goods. The post-audit is carried out by the Post-Release Inspection Division of the Customs Department.
The need for further control of the release of goods arises:
a. In case of customs declaration or re-export declaration falls in blue corridor;
b. If the declarant has indicated in writing that the actual quantity of released goods and/or the quantity and/or customs value of goods and/or the amount of import duty is less than indicated in the customs declaration or re-export declaration and accompanying documentation;
c. If appropriate verification is necessary in connection with the results of the analysis of data in the customs authority and/or information requested and received in the prescribed manner, including information received in the framework of international cooperation and mutual assistance.
d. If there is an appropriate decision and/or information from the law enforcement agency.
Further control of the release of the goods is carried out by the order of the authorized person of the customs authority. The types of post-audit control of goods are individual and complex. Post-audit control of an individual type - verification of goods released under a single customs declaration or a re-export declaration, or a re-export notice, or a temporary storage declaration, or a general declaration for the import/export of goods;
Post-audit controls for complex goods include:
a. Checking the customs formalities performed by the declarant and/or the person on a specific type of goods;
b. Checking the specific customs procedure or re-export or temporary storage or import/export of goods carried out by the declarant;
c. Checking customs formalities performed by the declarant for a certain period;
Forms of post-audit control of goods can be documentary checks and on-site checks. A post-audit documentary check is carried out in the customs control zone, without going to the place of activity of the person, on the basis of documents and other information related to customs formalities.
Documentary check can be used for both individual and complex inspections.
When performing a documentary check, the customs authority has the right to:
a. Independently determine the customs value of the goods and/or the amount of customs and/or tax liability of the declarant based on the information available to the customs authority;
b. To request from the declarant or a person to submit documentation related to the import and/or export operations of the declared goods, accounting data and/or other information (including the transportation of goods, reloading, storage, customs procedure or re-export or temporary storage or import/export of goods, determination of the amount of customs and/or tax liability and fulfillment of this obligation)
c. To present it to the customs authority, contact the declarant or a person (having the relevant documentation and/or information) and obtain from the declarant written and oral explanations on issues that arose during the post-audit control of goods.
At least 10 working days before the start of the on-site post-audit control of the goods, the declarant and/or person (the owner or his representative and/or any person directly or indirectly involved in the transaction related to the goods) shall be notified in writing or electronically. The on-site inspection must start no later than 30 days after the notification to the declarant and/or the person. If the inspection is not started within the specified period, the notification shall be considered invalid. The on-site inspection can be used for both individual and complex inspections. On-site inspection can last no more than 3 months. If necessary, in agreement with the head of the Revenue Service, it is possible to extend the inspection period by no more than 2 months.
When conducting an on-site inspection, the customs authority has the right to:
a.Request from the declarant and/or the person to provide relevant documentation, accounting data and/or other information (including the transportation of goods, reloading, storage, customs procedure or re-export or temporary storage or import and export of goods, determination of the amount of customs and/or tax liability and fulfillment of this obligation) on import and/or export operations of goods.
b. Receive written and oral explanations from the declarant and/or the person (who has the relevant documentation and/or information) on the issues raised during the on-site inspection;
c. Inspect the goods and/or take a sample, if the goods can be inspected and/or sampled.
d. Post-audit inspection of the goods may be urgent (urgent on-site inspection). An urgent on-site inspection is conducted without written notice if:
e. The customs authority has information that the declarant intends to avoid fulfilling customs and/or tax obligations by leaving the customs territory of Georgia, transferring goods to another person, destroying, concealing, amending or changing customs documents and/or taking other measures;
f. There is a reasonable doubt that the customs declaration/re-export declaration and the accompanying documentation were incorrectly classified, which led to a reduction in the amount of import/export duty or thus the avoidance of prohibitions restrictions imposed on the goods by Georgian legislation;
g. There is information that the goods placed in the procedure for specified use, are not used for the intended purpose or in violation of customs formalities used for other intended purposes.
The customs authority is obliged to apply to the court within 48 hours after the start of the urgent inspection and obtain permission from it to conduct the inspection. At the same time, the customs authority has the right to issue a tax lien/mortgage on the property of the declarant and/or person, regardless of whether he/she has a tax debt. The customs authority is not entitled to start an urgent inspection before obtaining the permission of the court. Representatives of the customs authority have the right to seal only those customs and/or tax documents and goods and material assets that are necessary for conducting an urgent on-site inspection of the declarant and/or person.
If the court does not give permission to the customs authority to conduct an urgent on-site inspection within the established period, the customs authority removes the seals on the customs and/or tax documents and/or goods and material assets of the declarant.
During the documentary or on-site inspection, the results are formalized by the “Post-Audit Control Inspection Act”. If the specifics of the post-audit control of goods require several stages of control, an interim act is drawn up after each stage.
Upon post audit control of the goods:
a. If an administrative offense is detected, the authorized person of the customs authority shall draw up a report on the administrative offense;
b. If signs of a crime are found, the relevant materials are immediately sent to the relevant investigative body;
c. If there is a customs offense, the authorized person of the customs authority shall record the results in the "Post-control inspection act" of the goods.
Container Control Program (CCP)
According to the United Nations and the World Customs Organization, 500-750 million containers are shipped worldwide each year, accounting for 90% of total trade turnover, and only 2% of this number of containers are inspected.
The incredible number of containers moving from country to country, from continent to continent, is a convenient opportunity for those involved in the illegal trade in drugs, counterfeit goods, weapons and strategic goods.
Due to the large volume of cargo, lack of personnel in law enforcement agencies, the complexity of processes in the seaport and many other circumstances, the inspection of most containers is not possible, which makes it convenient to use container transportation for smuggling and illegal delivery of goods.
To minimize these risks, the United Nations Office on Drugs and Crime (UNODC) and the World Customs Organization (WCO) jointly launched the Container Control Program in 2004 to help governments establish enforcement structures at selected seaports to prevent the cross-border movement of illegal goods. .
The Container Control Program currently operates in more than 70 countries, with more than 120 Port Control Units (PCUs) and Air Cargo Control Units (ACCUs).
A joint project of the United Nations Office on Drugs and Crime (UNODC) and the World Customs Organization (WCO), the Container Control Program, was established in Georgia by the Memorandum of Understanding of April 23, 2012, signed by the UNODC and Between the LEPL Revenue Service of the Ministry of Finance, the Special Operational Department of the Ministry of Internal Affairs of Georgia and the Patrol Police Department.
By a joint order N938/N350 of the Minister of Internal Affairs of Georgia and the Minister of Finance of Georgia dated November 28, 2014, a working group on the prevention, detection and suppression of drug trafficking was established and powers and rules for the activities of this group were determined.
According to the order, the working group includes the employees of the Central Criminal Police Department of the Ministry of Internal Affairs of Georgia and the Legal Entity of Public Law - the Revenue Service.
Working group:
a. Monitors the entry and exit of cargo on the territory of Georgia;
b. Carries out assessment and analysis of threats and risks related to illicit trafficking of drugs on the basis of the obtained information;
c. Develops proposals for the prevention, detection and suppression of illicit drug trafficking and submits them to the competent authority;
d. Participates in measures planned for the prevention, detection and suppression of illicit drug trafficking.
In case of detection of signs of crime and other offenses, the members of the working group, who are equipped with the relevant official powers, shall carry out the measures provided for by the legislation of Georgia.
The Working Group, in exercising its powers, if necessary, has the right to use the electronic information available to the Ministry of Internal Affairs of Georgia and the Ministry of Finance of Georgia, including databases, information and registration cards, files and other means necessary for the implementation of its functions and tasks.
The identity of the employees of the Revenue Service, who are involved in the joint working group (working group) operating within the framework of the Container Control Program, the place of work and the working time of the group are determined by the order of the Head of the Revenue Service.
In 2012, the first unit under the Container Control Program in Georgia started operating in the city of Poti, which focused on the control of sea containers.
In 2015, the Tbilisi Interagency Division was established and its scope of work includes customs crossing points and customs economic zones.
In 2017, a third group was set up to control air cargo and parcels.
The working group consists of a total of 19 members, including: 10 customs officers and analysts from the Customs Department, 2 Investigative Services, 4 Patrol Police and 3 Central Criminal Police.
The working group's area of operation includes land, sea and air customs crossing points, clearance economic zones and free industrial zones.
The subject of research and control of the working group is the illegal circulation and smuggling of drugs and precursors, weapons and ammunition, strategic products and counterfeit products.
Section 7. Relations of the Customs Service with State Agencies, Bodies and Stakeholders
7.1. Interagency Cooperation
Standing Commission on Military-Technical Issues, Interagency Expert Group.
In cases provided by law, the Customs Department of the LEPL Revenue Service issues permits for dual-use goods on the basis of the conclusion of the Standing Commission (Commission) on Military-Technical Issues of the Ministry of Defense. The recommendation is an individual administrative-legal act of the Commission.
The statute of the Standing Commission on Military-Technical Issues is approved by the Order №68 of the Minister of Defense of Georgia of August 4, 2020. The composition of the commission is determined by the individual administrative-legal act of the Minister (MOD 3 19 00000586, 01.10.2019).
The Commission consists of six members, including:
a. The Chairman of the Commission is the Minister of Defense of Georgia;
b. Deputy Chairman of the Commission - Deputy Minister, Curator of the Department of Military-Technical Affairs of the Ministry of Defense of Georgia;
The members of the commission are:
- Commander of the Georgian Defense Forces;
- Head of the General Inspection of the Ministry of Defense of Georgia;
- Head of the Legal Department of the Ministry of Defense of Georgia;
- Head of the Military-Technical Affairs Department of the Ministry of Defense of Georgia, who is responsible for the function of the Executive Secretary of the Commission.
By the decision of the commission and/or the secretary of the commission (the need is determined by the commission and/or the secretary of the commission), the following issue of the recommendation is submitted to the group of experts for consideration.
The members of the expert group are:
- Group Leader - Secretary of the Commission;
- Secretary of the group - an employee of the Department of Military-Technical Affairs of the Ministry;
- Other members of the group are the deputy heads of various administrative bodies or the heads of the relevant structural divisions of this body, whose identities are determined by an individual administrative-legal act of the Minister of Defense of Georgia.
Each member of the expert commission considers and evaluates the circumstances relevant to the case under consideration within the competence of the administrative body represented by this member. A member of the expert group within five working days shall submit to the expert group a reasonable written opinion on the issue. A member of the expert group has the right to request information/documentation on the issue under consideration, perform an additional investigation into the circumstances of the case and postpone consideration of the issue. The final decision (including the conclusion) of the group of experts is taken by voting at the meeting, by a majority vote of the members of the group. In case of equality of votes, the vote of the head of the expert group is decisive. The protocol of the meeting of the group of experts is drawn up and signed by all members of the group present at the meeting, taking into account their position. The protocol of the meeting of the group of experts is the basis for making a recommendation to the Commission.
The issue of recommendation regarding the transfer of dual-use goods will be considered by the panel and the commission if:
Dual-use goods are marked with one (*) asterisk in the control list (e.g. 0A001*, 0B001*, 0B002*, 0B004*, 1A007*, 0C001*, 1A008.c*, etc. items classified by ECCN);
Export, import, transit, brokering service and/or technical assistance in respect of dual-use goods are carried out to/from a country subject to UN Security Council sanctions/embargoes (in this case, the goods are considered to be marked with two (**) asterisks);
Items not included in the control list (e.g., uncontrolled machines, commonly used chemicals, test stands, etc.) but there is a reasonable doubt that they will be used in whole or in part, or may be used in the development, production, distribution of weapons of mass destruction or their means of delivery, or for military purposes (the so-called principle Catch-All Controls).
In the above cases, when issuing a permit for dual-use goods, along with other documents required for obtaining a permit, a positive recommendation of the Commission must be submitted to the Customs Department.
Nuclear and Radiation Safety Agency
The Nuclear and Radiation Safety Agency (Agency) is a legal entity of public law within the system of the Ministry of Environment Protection and Agriculture (Ministry) of Georgia. The Agency carries out state regulation and control in the field of nuclear and radiation safety, inspection and authorization of nuclear and radiation activities, responds to radiation alarms at border crossing points, as well as at customs and transport terminals in cooperation with the Customs Service and other law enforcement agencies.
The Agency issues licenses for various types of nuclear and radiation activities, including the transport of nuclear materials, radioactive sources and radioactive waste. The holder of this license, when transporting radioactive materials by motor vehicle, must comply with the requirements of the The European Agreement concerning the International Carriage of Dangerous Goods by Road (ADR) for the safe transport of radioactive materials.
The agency issues the following permits:
a. Permit to purchase and transfer radioactive materials;
b. Permit to import, export and transit of radioactive materials, raw materials from which nuclear material may be obtained or manufactured, equipment containing radioactive substances, import, export of nuclear technology or know-how; and radioactive sources (including radiopharmaceuticals);
c. Permit for export of radioactive waste.
The above-mentioned "b" and "c" permits are uploaded by the Agency in the "Unified Electronic System of Licenses, Permits and Certificates" and when moving radioactive and ionizing materials across the customs border, these permits are submitted electronically to the customs crossing point. These permits are issued for a single action, for one specific consignment of goods, for a period of one year. When importing radiopharmaceuticals for medical purposes, a permit may be issued for multiple actions for a period of 1 year. Information on the import and export of radioactive materials to Georgia shall be provided by the Customs Department to the Agency in the form prescribed by the legislation in order to carry out permit control. Along with the issuance of a permit for the import, export and transit of nuclear materials included in the control list (for example: ECCNs 0C001, 0C002, 1C012, 1C235, 1C236, 1C237, 1C239), the permit issued by the Agency for mentioned products must be submitted to the Customs Department.
Investigation Service of the Ministry of Finance
The Investigation Service of the Ministry of Finance of Georgia is a special law enforcement body within the system of the Ministry of Finance of Georgia with the status of a state subordinate body that fights crime in the financial and economic sphere in accordance with the legislation of Georgia. The main tasks of the division for combating violations of customs rules, which is the operational-investigative body of the Investigation Department, functioning under the Investigation Service, are: Organizing and conducting operational-investigative activities to identify and prevent offenses in the customs field and conducting criminal investigations within its competence; Analysis of the state of the fight against crime; Determining the types and methods and organizing appropriate operational-investigative activities; Organizing and coordinating the operational-investigative activities in the field of customs crimes in the territorial operational- investigative bodies of the Investigation Department.
Prosecutorial supervision over operational-investigative activities carried out in the Investigation Service and procedural management of the investigation, are carried out by prosecutors of the Department of Investigation and Procedure Department of the Ministry of Finance of Georgia. In case of detection of signs of a crime under the Criminal Code, during the implementation of customs formalities, the relevant materials together with evidence, will be transferred to the Investigation Service.
Please refer to:
Order No. 790 of the Minister of Finance of Georgia dated November 30, 2009 "On Approving the Regulations of the Investigative Service of the Ministry of Finance of Georgia"
and “On the approval of the regulation of the Department of Procedural Management of Investigation in the Ministry of Finance of the General Prosecutor's Office of Georgia, the Ministry of Justice and the Special Penitentiary Service” Approved by order No. 024 of the Prosecutor General of Georgia on August 17, 2022.
7.2. Relations between the customs authority and stakeholders
a. The applicant
A person or a group of persons established in Georgia may apply to the customs authority and request:
- Decision on the application of the customs legislation of Georgia;
- Preliminary decision on the commodity code;
- Preliminary decision on the origin of the goods.
In order to make a decision on the application of the customs legislation of Georgia, the applicant, together with the application, shall submit to the customs authority any information necessary for making this decision.
The customs authority shall, no later than 30 days after the receipt of the application, check whether the conditions laid down for the acceptance of the application have been met, and, if these conditions are met, shall notify the applicant of the acceptance of the application within the same period.
The customs authority must make a decision no later than 120 days after the receipt of the application for processing. If the customs authority fails to make a decision within the established period, it shall notify the applicant about this before the expiration of the specified period, indicating the relevant reason and set a new period for making a decision, which may not exceed 30 days, unless otherwise provided by the customs legislation of Georgia.
The decision shall enter into force from the date of delivery to the applicant, unless otherwise provided by the customs legislation of Georgia or the same decision. The decision is valid for an indefinite period, unless otherwise provided by the customs legislation of Georgia. If the decision may have a negative impact on the applicant, with the exception of cases provided for by the Customs Code, the customs authority is obliged to inform/bring to the attention of the applicant its content and justification before making this decision, in which case the applicant should be given the opportunity to submit the relevant document to the customs authority.
A decision that has a negative impact on the applicant must be motivated and have the right to appeal in the manner prescribed by this Code. The owner of the decision is obliged to fulfill the obligations determined by the decision. The holder of the decision is obliged to immediately notify the customs authority of all circumstances that have arisen after the adoption of the decision and that may affect its operation/execution and/or change its content.
In exceptional cases, the customs authority has the right to:
a. Review the decision;
b. Suspend a decision or declare it invalid.
The customs authority controls the fulfillment of the conditions and obligations of its decision by the decision holder. If 3 years have not passed since the company establishment of the decision holder, the customs authority shall carry out special control within 1 year after the adoption of the decision. In order to make a preliminary decision on the commodity code or the origin of goods, a person may submit one application for only one product category.
To make a preliminary decision on the commodity code or the origin of goods, the description of the goods must indicate the commercial name of the goods, as it is indicated in the contract or invoice and its description depending on the type of goods. In addition, the description of the goods should include a description of the main characteristics and properties that provide information necessary for classification purposes, such as: the purpose of the goods; The main material from which the product is made; The function that the goods must perform; The degree of its processing (if such data determine its properties); Trademark established by the manufacturer; Model etc.
A draft preliminary decision on the Commodity Code or on the origin of goods is developed by the Customs Department and a permanent working group established by order of the head of the Revenue Service. If the submitted documents and/or information are not sufficient to make a preliminary decision, the Customs Authority, within 15 days after the registration of the application, notifies the applicant of the existence of a deficiency and the need to eliminate it, and sets a deadline for eliminating the deficiency no more than 30 days. In this case, the term of the preliminary decision shall be considered suspended until the defect is eliminated and/or the specified term expires.
The customs authority has the right, if necessary, to require the presentation of the conclusion of a laboratory accredited in Georgia, the costs of which are reimbursed by the applicant. If the deficiency is not eliminated within the established period, the Revenue Service has the right to decide to leave the application without consideration, of which the applicant is notified.
The Revenue Service is authorized to refuse to issue a preliminary decision if:
- the person requests a preliminary decision on the goods on which a preliminary decision has already been issued;
- the person requests a preliminary decision on the goods that have already been declared in the customs procedure (except for the customs warehouse) or re-export;
- there is a reasonable decision of the head of the Revenue Service or an authorized person.
The draft preliminary decision shall be submitted to the Head of the Revenue Service or an authorized person for approval. If a person acts in accordance with a preliminary decision, it is unacceptable for the supervisory/law enforcement agency to take a decision against the preliminary decision and charge a tax and/or sanction. Preliminary decision on the commodity code or preliminary decision on the origin of the goods is valid for 3 years after its entry into force.
b. Customs representative
Customs representative (hereinafter referred to as a representative) is a person who, on behalf of another person, carries out the actions and customs formalities provided for by the customs legislation of Georgia.
The representative may be:
a. Direct - when a representative acts on behalf of another person and with instructions from the same person;
b. Indirect - when the representative acts on his own behalf, but with instructions from another person;
The representative must be a person residing in Georgia. This is not obligatory in case of transit or temporary admission procedure. When performing customs formalities, an indirect representative shall bear the same obligations as the person who gives the corresponding order. In relations with the customs authority, the representative must indicate that he is acting on behalf of another person, and indicate whether he is a direct representative or indirect. The customs authority may request a power of attorney from the representative. If a representative of the same person regularly carries out customs clearance in respect of this person, the customs authority does not require a power of attorney in each specific case. In addition, at the request of the customs authority, the representative is obliged to submit relevant document. A person is not deprived of the right to personally participate in customs relations, to have a representative (direct or indirect), as well as the participation of a representative does not deprive a person of the right to personally participate in these relations. In the case of an enterprise/organization, the legal representative of a person in the customs authority is a person authorized by the management, unless otherwise provided by the charter of the enterprise/organization. The legal representative of a natural person is a person exercising relevant powers on the basis of the legislation of Georgia. In this case, all duties and responsibilities of a natural person under this Code shall be borne by his legal representative. An authorized representative of an individual acts on the basis of a power of attorney issued by this natural person and notarized. The authority of the representative in the customs authority is confirmed by the submission of the following documents together with the identity card:
a. In case of an authorized representative of a natural person - a power of attorney issued by this natural person and notarized or another document equal to the power of attorney defined under the Civil Code of Georgia;
b. In case of a legal representative of a natural person:
b.a. Birth certificate, or
b.b. The decision of the guardianship and custodial authority on the appointment of a guardian or custodian;
c. In case of an authorized representative of the enterprise/organization:
c.a. Power of attorney issued by this enterprise/organization, or
c.b. Contract;
d. In case of a legal representative of the enterprise/organization:
d.a) Extract from the register of entrepreneurs and non-entrepreneurial (non-commercial) legal entities, or
d.b. Other document certifying the authority of the representative.
Confirmation of the authority of a representative in the customs authority by submitting documents is not mandatory if:
a) The authority of the representative is confirmed by the information posted on the electronic resource of the LEPL - the National Public Registry Agency operating under the administration of the Ministry of Justice of Georgia, or
b) the validity of the document certifying the representation, reflected (uploaded) in the electronic means of processing customs data, has not expired, and the information on the early termination of the person's representation authority has not been submitted to the customs authority.
A document certifying the authority of a representative in the customs authority is submitted in electronic form (through the payer's personal account) or in material form. The document certifying the authority of the representative is issued (uploaded) by an authorized person of the customs service using electronic data processing tools that provide the ability to save and revoke the power of attorney.
C. customs carrier:
According to the Customs Code of Georgia, a carrier is a person who imports/exports goods or is responsible for transporting goods through the customs territory of Georgia. In case of sea or air transportation, the carrier is a person who concludes an agreement and issues a document on the shipment of goods through the customs territory of Georgia. The carrier who manages the transportation of the goods on the customs territory of Georgia is obliged to make a general declaration at the customs crossing point, submit the goods and their accompanying documents to the customs authority within a specified period and submit them unchanged at another place specified by the customs authority without damaging the means of identification (marks).
According to the Law of Georgia “on the Control of Military and Dual-Use Goods“, a carrier is a natural or legal person or other organizational unit responsible for the transit of products. A permit for dual-use goods is issued to the person directly carrying out the operation specified in the permit, and in the case of transit, the permit may also be issued to the carrier. Together with the documents submitted for obtaining a permit for dual-use goods, the carrier must submit to the licensing authority documents certifying the carrier's right to transport goods, or certified copies of this document.
d. Authorized Economic Operator (AEO):
A person established in Georgia has the right to apply to the customs authority for obtaining the status of an authorized economic operator. The status of an authorized economic operator includes two types of authorization:
a. Authorization for customs simplification, which, in accordance with the customs legislation of Georgia, allows its owner to use certain simplified customs formalities;
b. Authorization for protection and security, which gives its owner the right to enjoy certain benefits related to protection and security.
A person has the right to hold both types of authorizations at the same time. Applicants for the status of an Authorized Economic Operator must meet the following criteria:
a. Absence of a significant violation of the customs, tax and administrative legislation of Georgia, as well as the absence of a criminal offense related to the applicant's economic activity;
b. The presence of a high level of control over the transactions and flows of goods carried out by the applicant, obtained through a system of commercial management and, if necessary, transport accounting, which ensures proper customs control;
c. Solvency and financial sustainability. This criterion can be considered valid if the applicant has a good financial situation, which allows him to fulfill the obligations related to his economic activity;
d. Practical standard of competence or professional qualification directly related to the activity performed - to obtain authorization to use simplified customs formalities;
e. Adequate protection and security standard (to obtain authorization to use certain security and safety benefits), which means that the authorization seeker takes appropriate measures to ensure the security and safety of the international supply chain, including in areas such as integrity and penetration of goods, logistics processes and goods handling, identification of staff and business partners.
The prerequisites for obtaining the status of an Authorized Economic Operator are:
a. Absence of a criminal record under the relevant articles of the Customs Code of Georgia, the Tax Code of Georgia, the Code of Georgia on Administrative Offenses and the Criminal Code of Georgia for the last 3 consecutive years from the date of registration of an application for the status of an Authorized Economic Operator (status applicant);
b. Accounting system complies with accounting and financial reporting standards;
c. The accounting system integrates accounting for customs purposes or the accounting system allows the identification of relevant data;
d. The customs authority has access (including in electronic form, if any) to the accounting records, and upon request - also to its commercial and other information;
e. The logistics system allows the separation of Georgian goods and foreign goods, and if necessary, the determination of their location;
f. The organizational structure of the status seeker facilitates the management of the movement of goods, while the internal control system ensures the detection, prevention and elimination of procedural inaccuracies and violations;
g. Procedures apply to goods subject to prohibitions and/or restrictions, which also include the possibility of identifying such goods and distinguishing them from other goods;
h. Ability to store accounting and other documents;
i. Employees are well informed of the obligation to immediately notify the customs authority of possible violations of the law;
j. Special protection mechanisms ensure the unauthorized access to the computer systems and the protection of information;
k. Solvency and financial sustainability;
l. Ensuring an appropriate standard of safety, which means that:
- The status seeker has a person in company in charge of security and protection issues;
- Buildings and other premises used by the status seeker are protected from unauthorized access;
- Appropriate conditions are provided for the storage and movement of goods, including protection of goods from unauthorized access, movement, alteration or any other illegal activity;
- The status seeker, by concluding agreements with his business partners, employees and other employees, imposes the obligation to ensure their safety and security standards within the competence;
- Those responsible for safety and security standards regularly participate in relevant training programs.
Since the status of an authorized economic operator is granted, the person enjoys simplified customs control measures, including less physical and documentary control, depending on the type of authorization. The authorized economic operator will not be able to benefit from the simplification of customs procedures and benefits in case of movement and/or registration of the following goods:
a. Precursors, wastes, ozone depleting substances, and severely restricted hazardous chemicals and pesticides;
b. Nuclear and radiation articles, nuclear materials, radioactive substances, radioactive waste, minerals from which it is practically possible to obtain nuclear materials, everything that is made from or contains nuclear material or radioactive substances;
c. Species included in the Annexes of the CITES (the Convention on International Trade in Endangered Species of Wild Fauna and Flora), their parts and derivatives;
d. Weapons and ammunition;
e. Specially controlled medicines;
f. Goods transported by pipeline transport and power lines.
The customs authority has the right to grant privileges related to the status of an Authorized Economic Operator to a person established in a foreign country, if he fulfills the obligations and conditions provided by the relevant legislation of that country, which are recognized by Georgia as equivalent to the obligations and conditions established for an AEO. The granting of these privileges shall be based on the principle of reciprocity provided for in the international treaty of Georgia, unless otherwise provided by the legislation of Georgia. The Revenue Service has the right to revoke or suspend the status of an authorized economic operator in case of detection of violations established by law, or on the basis of a personal application of the status holder.
e. Gold List participant
The participant of the "Gold List" has the right to use simplified customs formalities when importing and / or exporting his / her goods to/from the customs territory of Georgia. However, the ownership of this status does not prohibit the Gold List participant from carrying out customs formalities in a different manner established by the customs legislation. Necessary conditions for obtaining the status of a "Gold List" participant are:
A. During the previous 12 consecutive months from the first day of the month of registration of the candidate application in the Revenue Service:
- High rate of customs value of goods declared for free circulation and / or export procedure in the customs territory of Georgia - not less than 5.0 million GEL;
- High rate of fulfillment of customs / tax liabilities arising on import duties - not less than GEL 900,000, or a large number of customs declarations submitted for release for free circulation and / or entry into the export procedure - not less than 100;
B. As of the first date of the month of registration of the candidate application in the Revenue Service:
- Absence of a valid decision on imposition of liability due to the candidate committing the following offenses under the Customs Code:
1. Reduction of the amount of import duty in case of incorrect data submitted in the customs declaration and accompanying document;
2. Importation of goods (except cash and securities) into the customs territory of Georgia or removal from the customs territory of Georgia bypassing the customs control or secretly from it;
3. Uncoordinated action with the customs authority or violation of the terms of the customs procedure, which led to illegal management, loss or destruction of goods and / or means of transport under customs supervision;
4. Increase or decrease in the customs value of goods in the customs declaration, which has not led to a reduction in the amount of import duty.
- 6 months must have passed since the detection of the offense;
- The candidate must be registered as a value added tax payer;
- The tax debt should not be accrued to the candidate.
In exceptional cases, the status of a participant of the "Gold List" may be granted to a person without meeting the above conditions, if he / she submits a written obligation to release at least 5.0 million GEL worth of customs goods (fixed assets) into the customs territory of Georgia within 12 months after receiving the status of a "Gold List" participant, at the same time, goods (fixed assets) with a customs value of at least GEL 3.0 million will be released for free circulation within the first 6 months.). The participant of the "Gold List" is given access to the electronic data processing system - "eCustoms". The Gold List participant has the opportunity to defer duty payment for a 5-day period. The Gold List participants have the right to place goods under customs control (subject to customs procedure / re-export) in their own warehouse. The Gold List participant will not be able to use the simplified customs formalities in case of movement and / or registration of the following goods:
- Precursors, wastes, ozone depleting substances, and severely restricted hazardous chemicals and pesticides;
- Nuclear and radiation items, nuclear materials, radioactive substances, radioactive waste, minerals from which it is practically possible to obtain nuclear materials, anything made from nuclear material or radioactive material or containing them as an integral part;
- Species included in the Annexes to the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES), their parts and derivatives;
- Weapons and ammunition
- Specially controlled medicines;
- Goods transported by pipeline transport and power lines;
- Goods subject to various customs procedures by a gold list participant or to his/her destination by one or more vehicles transported or goods transported simultaneously by one means of transport (other than air and sea transport), the consignee or consignor of which is another person together with the Gold List participant, except for the products declared before importation into the customs economic zone with the customs declaration of the goods filled in by the customs authority or moved to the destination of the customs economic zone.
The basis for revoking the status of a "Gold List" participant is:
A. Dissatisfaction with the mandatory conditions for obtaining the status;
B. Identification of recognized tax debt;
C. Existence of a valid decision on imposition of liability for the commission of certain customs offenses;
D. A negative verdict of a court that has entered into legal force against a person for a crime under Article 214 of the Criminal Code of Georgia;
E. Detection of a consignment of counterfeit goods.
Section 8. Responsibility for violation of Customs rules and Procedures
Violation of customs rules and Liabilities
a. Removal, disposal, return of dual-use goods transported without permission
When dual-use goods are released for free circulation, temporary importation, customs warehousing, inward processing, free zone, or other customs procedures for entry into the customs territory of Georgia, the import / transit permit shall be submitted to the customs office of entry. In case of customs clearance, the same permit shall be submitted to the customs clearance zone (CCZ), and in case of transit - to the customs crossing point of exit. In case of export, outward processing or re-export, the dual-use export permit shall be submitted to the CCZ together with the customs declaration, and at the customs border crossing point - to the customs exit point.
If a permit has not been submitted for the general declaration of dual-use products imported into the customs territory of Georgia, the authorized person from the customs crossing point or customs office shall issue a "notice of intent to dispose of the goods" informing the declarant that he/she is given an additional period of 3 working days, during which he/she must provide a permit or return or re-export the goods. Otherwise, the Revenue Service will transfer the goods to state ownership or ensure the destruction of the goods. If the declarant is unable to submit a permit or return or re-export the goods within the period specified in the notice, the Revenue Service shall dispose of the goods. In this case, the goods can be disposed of by transferring them to state ownership or by destroying the goods at the expense of the owner or possessor.
b. Customs offenses and liabilities provided by the Customs Code on customs offenses
A customs offense is an unlawful act (act or omission) of a person, for the commitment of which the Customs Code of Georgia provides for liability. A customs sanction is a measure of liability imposed for the committment of a customs offense. There are several types of customs sanctions: warning, fine, confiscation of goods and / or vehicles subject to customs offenses. The responsibility for committing a customs offense lies with the person who committed the relevant act, and if the offender is more than one, they shall be jointly and severally liable under this Code. A person may not be held liable for committing the same customs offense repeatedly.
A customs offense shall be deemed to have been committed repeatedly if the same act has been committed within 12 months of the detection of the previous customs offense. When detecting several customs offenses, a separate customs sanction is applied to each customs offense. In addition, a stricter customs sanction does not absorb a less stringent customs sanction. A liability provided for in the Customs Code for committing a customs offense may not be imposed on a person if the act constituting this customs offense entails the imposition of criminal liability. The customs authority / dispute settlement body or the court has the right to release a person from a customs sanction if the relevant customs offense was not intentional and was committed by mistake / unknowingly.
A person is not liable for committing a customs offense if this customs offense is caused by an act of force majeure. The statute of limitations for imposing a customs sanction under a Customs Code for committing a customs offense is 3 years. Measures to ensure the payment of the tax debt provided for by the Tax Code of Georgia are used to ensure the payment of the imposed customs sanction (e.g. seizure of property, sale of seized property, submission of a collection order to a bank account, etc.).
The case of customs violation is handled by the customs authority. In case of detection of a customs offense, the authorized person of the customs body shall draw up a customs offense report, which shall be handed over the offender. A customs offense report is a decision of a customs authority to impose a customs sanction on a person for committing an offense. A customs offense report is considered a tax claim. The offender has the right to submit an explanation and / or note to the customs authority, which will be reflected in the customs offense report or attached to it. If, within 30 days of the detection of a customs offense, it is impossible to identify the perpetrator of this act, the customs authority shall make a decision on the transfer of the customs offense goods and / or means of transport to the State.
The Customs Code defines the measures of liability for the following types of customs offenses:
1. Violation of the deadline for submission of goods / general declaration / declaration of goods or declaration of a means of transport (Article 165)
Violation of the deadline for submission of goods / general declaration / declaration of goods or declaration of a vehicle shall result in a fine of GEL 50 for each delayed full / incomplete day, but not more than GEL 1,000 in total.
2. Removal and/or otherwise misuse / destruction of a means of customs identification without the consent of the customs authority (Article 166)
Without the consent of the customs authority, the removal and/or otherwise misuse / destruction of a means of customs identification, damage to the marked vehicle, building in the customs control zone or marked luggage / hand luggage and / or movement of the vehicle with a marked identification in such a way that it can be accessed without damage of this means of identification, incurs a fine of GEL 500 on the owner.
Repeating this action will result in a fine of GEL 1,000 for the owner.
If the removal and/or otherwise misuse / destruction of a means of customs identification has resulted in the disposal, loss or destruction of the goods from the marked vehicle, the building in the customs control zone or the marked luggage / hand luggage, the owner will be fined GEL 5,000, and for repeating the same action - GEL 10,000.
Note:
If there is a small damage observed on the means of customs identification and / or the marked vehicle, on the building in the customs control zone and / or on the marked luggage / hand luggage, but it is not possible to enter the marked vehicle, on the building in the customs control zone and / or on the marked luggage / hand luggage, the person will not be liable for damage to the means of identification.
3. Reduction of the amount of import duty (Article 167)
Reduction of the amount of import duty by entering incorrect data in the customs declaration and its accompanying document shall result in a fine of 100 percent of the amount of reduced import duty in the customs declaration, and in case of repeated actions, the fine shall be 200 percent of the amount of reduced import duty.
Reduction of the amount of import duty for a customs declaration submitted by a natural person on goods worth up to GEL 3,000 and entering the accompanying document with incorrect data shall result in a fine of 40 percent of the amount of the reduced import duty in the customs declaration, and a fine of 100 percent .
Note: The reduction of the amount of import duty is considered to be the entry of such data in the customs declaration, the inaccuracy of which is confirmed on the basis of evidence during customs control or in accordance with the rules established by the legislation of Georgia on criminal cases. The mere existence of suspicion, which may become the basis for the correction of the customs value of goods or their determination by a different method, does not constitute a customs offense.
4. Illegal movement or transfer of goods (Article 168)
Importation of goods into the customs territory of Georgia or removal from the customs territory of Georgia secretly or bypassing the customs control results in a fine in the amount of 100 percent of the customs value of the goods or confiscation of the goods and / or means of transport.
The same action, committed repeatedly, results in a fine in the amount of 100 percent of the customs value of the goods, with or without confiscation of the goods and / or means of transport.
Entry of goods worth up to GEL 3,000 by a natural person into the customs territory of Georgia or removal from the customs territory of Georgia secretly or bypassing the customs control from it shall result in a fine in the amount of GEL 1,000 and / or confiscation of goods and / or vehicles.
Importation of goods placed in a vehicle intended for transit movement or removal from the customs territory of Georgia bypassing the customs control or concealing them shall result in a fine of GEL 2,000, and a person shall be fined GEL 4,000 for repeating the same act.
5. Illegal transfer of cash and securities at the customs border of Georgia (Article 169)
Moving cash and securities in the amount of GEL 30,000 or its equivalent in other currency, but not more than GEL 50,000 at the customs border of Georgia, bypassing the customs control or by secretly or incorrectly declaring it, shall result in a fine of GEL 3,000 or confiscation of this amount.
Moving cash and securities in the amount of GEL 50,000 or its equivalent in other currency, but not more than GEL 100,000 at the customs border of Georgia, bypassing the customs control or by secretly or incorrectly declaring it, shall result in a fine of GEL 5,000 or confiscation of this amount.
Moving cash and securities in excess of GEL 100,000 or its equivalent in other currency, at the customs border of Georgia, bypassing the customs control or by secretly or incorrectly declaring results in a fine in the amount of 10% of this amount or confiscation of this amount.
6. Reloading / unloading of goods under customs supervision without the consent of the customs authority or leaving the customs control zone by the goods and / or means of transport or deviating from the customs route by the means of transport (Article 170)
Leaving the customs control zone by the goods and / or means of transport without the consent of the customs authority, reloading or unloading the goods under customs supervision or deviating from the route shall result in a fine of GEL 1,000 and a repeated offenses will result in a fine of GEL 2,000.
7. Violation of the conditions of the customs procedure (Article 171)
Violation of the terms of the customs procedure will result in a fine of GEL 500, and repeated offenses will result in a fine of GEL 1,000.
Note: This liability does not apply when other liability is established by the Customs Code for the same action.
8. Illegal disposal, loss or destruction of goods and / or means of transport (Article 172)
Uncoordinated action with the customs authority or violation of the terms of the customs procedure, which resulted in illegal disposal, loss or destruction of goods and / or means of transport under customs supervision, shall result in a fine of 100% on identical / similar goods and / or a tax payable on the vehicle.
This action, if there is a primary tax document certifying the delivery of illegally disposed / lost / destroyed goods and / or a vehicle, results in a fine of 10 percent of the amount of the import duty payable on the same or identical / similar goods and / or vehicle.
9. Change of the customs value of goods in the customs declaration (Article 173)
An increase or decrease in the customs value of goods in a customs declaration that has not resulted in a reduction in the amount of the import duty shall result in a fine of 10 percent of the difference between the customs value and the increased or decreased customs value. And committing this action repeatedly results in a fine of 20 percent of the difference between the customs value and the increased or decreased customs value.
10. Notification to the customs authority about the entry / arrival or departure of a vehicle (Article 174)
Failure to notify the customs authority by the port, railway or airport about the entry, arrival or departure of the vehicle that crosses the border of Georgia shall result in a fine in the amount of GEL 5,000. Repeated violation of the mentioned offense - a fine in the amount of GEL 10,000.
11. Violation of the document storage period (Article 175)
Violation of the storage period of the document, if the submission of hardcopy of the document which has already been submitted to the customs authority electronically is not required, results in a fine in the amount of GEL 1,000.
12. Non-compliance with permit conditions (Article 176)
Violation of the permit condition established by the legislation of Georgia on the activities of a customs warehouse or a free trade point shall result in a fine of GEL 2,000 for the permit holder. Repeated violation of this law will result in a fine of GEL 6,000.
13. Resisting an authorized person of a customs authority, disregarding his lawful request (Article 177)
Resisting an authorized person of a customs authority, disregarding his lawful request, which hindered the implementation of the measure envisaged by the customs legislation of Georgia, shall result in a fine in the amount of GEL 800, and repeated action shall result in a fine in the amount of GEL 2,000.
14. Failure to submit information to the customs authority (Article 178)
Failure to submit information related to customs supervision, customs control or customs formalities to the customs authority within the timeframe established by the customs legislation of Georgia shall result in a fine of GEL 400, and repeated violation of the law shall result in a fine of GEL 1,000.
Failure to submit information on air transport, goods and / or passengers in advance to the customs authority by a person carrying out international air transportation shall result in a fine of GEL 2,000, and repeated violation of the law shall result in a fine of GEL 4,000.
15. Declaration for release for free circulation without marking of excisable goods subject to mandatory marking (Article 179)
Declaration of release for free circulation without marking of excisable goods subject to mandatory marking shall result in a fine in the amount of the customs value of the excisable goods (which is without marking) subject to mandatory marking, but not less than GEL 500.
c. Criminal Code liabilities to the violation of export control rules and the creation of weapons of mass destruction
The Criminal Code of Georgia establishes the basis for criminal liability, determines which act deems to be criminal, and imposes an appropriate sanction or other criminal measure.
The purpose of this Code is to prevent criminal encroachment and to maintain law and order.
Apart from this, the Code defines the size of the coercive measure in connection with the illegal circulation of dual-use products:
According to Article 214, Part 4 of the Code, “at the customs border of Georgia, moving or unloading a poisonous, radioactive or explosive substance, weapon, explosive device, firearm, material or device that can be used as a strategic weapon for mass destruction by violating the rules for treatment of strategically important raw materials is punishable by imprisonment for a term of five to eight years”;
Article 230 establishes the punishment for unlawful treatment of nuclear material or equipment, radioactive waste, radioactive substance. In particular, illegal purchase, storage, possession or disposal, use, processing, transfer, shipment, export, import, trade or other illicit treatment of nuclear material or equipment, radioactive waste (including used nuclear fuel), radioactive substance, as well as any kind of equipment, plant, apparatus or goods containing radioactive substance, as well as other related transactions are punishable by imprisonment for a term of five to ten years. The same act, committed repeatedly, resulting in the loss of human life or other grave consequences, is punishable by imprisonment for a term of eight to fourteen years.
According to Article 235, "Illegal export of weapons of mass destruction or their means of delivery, technology or equipment for the production of weapons or military equipment, scientific-technical information or services, subject to special export control, is punishable by a fine or imprisonment for a term of three to five years."
According to Article 2351 illegal production, purchase, storage, possession, disposal, use, processing, testing, transfer, shipment, export, import, trade or other illicit treatment of a toxic chemical or its precursor as defined in the Chemical Weapons Convention, as well as other related kinds of violation of turnover rules provided by the international agreements of Georgia is punishable by imprisonment for a term of five to ten years, and the same act committed for the manufacture of a chemical weapon shall be punishable by imprisonment for a term of eight to fourteen years.
Note: For the actions provided for in this Article, a legal entity shall be punished by a fine, deprivation of the right to operate or liquidation and a fine.
Article 406 defines the size of the punishment for the manufacture, purchase, storage, sale, shipment, transit or transshipment of weapons of mass destruction. In particular, the manufacture, purchase, storage, sale, shipment, transit or shipment of chemical, biological or other weapons of mass destruction prohibited by an international agreement of Georgia shall be punishable by imprisonment for a term of ten to fifteen years.
Note: For the actions provided for in this Article, a legal entity shall be punished by a fine, deprivation of the right to operate or liquidation and a fine.
Section 9. National commodity nomenclature of foreign economic affairs
9.1. The essence of the national commodity nomenclature of foreign trade
The Harmonized Commodity Description and Coding System (HS) is an international commodity nomenclature developed by the World Customs Organization to simplify trade procedures and information exchange by harmonizing the description, classification and coding of goods in foreign trade.
Harmonized system (hereinafter the System) is governed by the "International Convention on the Harmonized Commodity Description and Coding System" adopted in June 1983 and entered into force in January 1988.
According to the definition given in the Convention, the "Harmonized Commodity Description and Coding System", hereinafter referred to as the "Harmonized System", means the Nomenclature comprising the chapters, the headings and subheadings and their related numerical codes, the Section, Chapter and Subheading Notes and the General Rules for the interpretation of the Harmonized System, set out in the Annex to this Convention;
The revision, correction and/or additions to the system are carried out by the Harmonized System Committee once in 5 years. Making changes in the harmonized system requires long consideration and analysis and effective implementation.
The change review cycle begins as soon as a new revision is received. e.g. The 2022 edition was approved in June 2019 (for implementation in 2022), and in the second half of 2019 the revision cycle for the 2027 edition began. Harmonized System (HS) is officially joined by 160 parties: 159 countries (including all EU countries) and the European Union as a union of countries.
In order to ensure harmonization, the participating countries agreed that each country's national commodity nomenclature should be based on the nomenclature and legal notes of the Harmonized System. The parties have the right to classify the goods beyond the 6-digit commodity code level and add their own legal notices, in accordance with national tariff and statistical needs. Parties often define national customs tariffs at the 8-digit commodity code level. Different countries use a nomenclature consisting of ten or eleven or more digits. If the number of digits in the commodity code exceeds 8 characters, the additional digits are called national subheadings.
212 countries, territorial or economic or customs unions use the system.
The system is used for the formation of customs tariffs and the collection and processing of statistical data on foreign trade.
Currently, the governments of countries, international organizations and the private sector are actively using the harmonized system for the development of internal tax and trade strategy of the country, monitoring of controlled goods, determination of rules of origin of goods, price control, protection of quotas, economic analysis and research and other purposes.
Harmonized system includes more than 5,600 commodity groups (headings) structured into 21 sections (Sections I – XXI) and 99 chapters (1-99), of which chapters 98 and 99 are intended for national use, and chapter 77 is reserved for the future possible use in harmonized system.
Sections and chapters describe general categories of goods, while heading and subheading provide more precise descriptions of the goods[76].
[76] Each group is accompanied by explanatory notes, and the official general rules of interpretation (in 5 volumes, in French and English) have been developed by the World Customs Organization and are published on the website: https://www.wcotradetools.org/en
As a rule, goods are divided into sections and chapters according to the quality of processing or the technological complexity of its manufacture. For example, natural goods such as live animals, vegetables and fruits are classified in I-II section, and products, machinery and vehicles obtained as a result of a complex technological process –in XVI-XVII sections. Also, raw materials are often classified in the initial chapters of sections, and goods obtained from these raw materials - in the next higher chapters. e.g. Silk, cotton, chemical fibers, garments are classified in chapters 50-55 of the XI section (textile materials and textile products), and the following chapters 56-63 include carpets, clothing and other products. A similar principle applies to the sequence of commodity codes within a section. e.g. The original headings 7601-7603 of Chapter 76 include unwrought aluminum, aluminum scrap and powders, and headings 7604-7607 include articles of simple geometrical shape, such as aluminum rods, profiles, wire, sheets, plates, panels, etc. And in the last 7608-7616 headings of the chapter, aluminum pipes, fittings, metal constructions, reservoirs, capacities and other types of aluminum products are classified.
The commodity nomenclature code consists of 6 digits. The first two digits indicate the harmonized system chapter, the next two digits indicate the heading, and the following two digits- sub-heading. For example, product code 7601 20 refers to Chapter 76 (Aluminum and articles thereof), heading 7601 (Unwrought aluminum) and subheading 7601 20 (Aluminum alloys).
The Harmonized Commodity Description and Coding System (HS) in relation to Georgia has been in force since January 1, 2011.
The system operating in Georgia is called "National Commodity Nomenclature of Foreign-Economic Affairs" (hereinafter SES ESN), which is approved by the order of the Minister of Finance.
The National Commodity Nomenclature of Foreign Economic Affairs (SES ESN) is prepared on the basis of the 2022 edition of the International Convention "On the Harmonized System of Commodity Description and Coding System".
Customs and tax authorities of Georgia, government regulatory and other agencies use SES ESN for:
- administration of customs tariff and internal state taxes;
- determining customs and tax allowances;
- administration of trade statistics;
- the control the circulation of goods defined by international agreements and national legislation (eg, such as dual-use and military products, narcotic and psychotropic substances and precursors, prohibited and restricted chemical substances and pesticides, waste, endangered species of wild flora and fauna, ozone-depleting substances and other);
- the control of compliance with the requirements established by the technical regulations for the admission of various goods to the market; etc.
SES ESN consists of 22 sections and 99 chapters.
The mentioned nomenclature is detailed at the level of eleven digits, taking into account the specifics of the national economy.
The following chapters of goods are defined by the national commodity nomenclature of foreign economic affairs:
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Section I
LIVE ANIMALS; ANIMALPRODUCTS
Chapter 01
Live animals.
Chapter 02
Meat and edible meat offal.
Chapter 03
Fish and crustaceans, mollusks and other aquatic invertebrates.
Chapter 04
Dairy produce; birds' eggs; natural honey; edible products of animal origin, not elsewhere specified or included.
Chapter 05
Products of animal origin, not elsewhere specified or included.
Section II
VEGETABLE PRODUCTS
Chapter 06
Live trees and other plants; bulbs, roots and the like; cut flowers and ornamental foliage.
Chapter 07
Edible vegetables and certain roots and tubers.
Chapter 08
Edible fruit and nuts; peel of citrus fruit or melons.
Chapter 09
Coffee, tea, maté and spices.
Chapter 10
Cereals.
Chapter 11
Products of the milling industry; malt; starches; inulin; wheat gluten.
Chapter 12
Oil seeds and oleaginous fruits; miscellaneous grains, seeds and fruit; industrial or medicinal plants; straw and fodder.
Chapter 13
Lac; gums, resins and other vegetable saps and extracts.
Chapter 14
Vegetable plaiting materials; vegetable products not elsewhere specified or included.
Section III
ANIMAL, VEGETABLE ORMICROBIAL FATS AND OILS AND THEIR CLEAVAGE PRODUCTS; PREPARED EDIBLE FATS;ANIMAL OR VEGETABLE WAXES
Chapter 15
Animal, vegetable or microbial fats and oils and their cleavage products; prepared edible fats; animal or vegetable waxes.
Section IV
PREPARED FOODSTUFFS;BEVERAGES, SPIRITS AND VINEGAR; TOBACCO AND MANUFACTURED TOBACCO SUBSTITUTES;PRODUCTS, WHETHER OR NOT CONTAINING NICOTINE, INTENDED FOR INHALATION WITHOUTCOMBUSTION; OTHER NICOTINE CONTAINING PRODUCTS INTENDED FOR THE INTAKE OFNICOTINE INTO THE HUMAN BODY
Chapter 16
Preparations of meat, of fish, of crustaceans, mollusks or other aquatic invertebrates, or of insects.
Chapter 17
Sugars and sugar confectionery.
Chapter 18
Cocoa and cocoa preparations.
Chapter 19
Preparations of cereals, flour, starch or milk; pastry cooks' products.
Chapter 20
Preparations of vegetables, fruit, nuts or other parts of plants.
Chapter 21
Miscellaneous edible preparations.
Chapter 22
Beverages, spirits and vinegar.
Chapter 23
Residues and waste from the food industries; prepared animal fodder.
Chapter 24
Tobacco and manufactured tobacco substitutes; products, whether or not containing nicotine, intended for inhalation without combustion; other nicotine containing products intended for the intake of nicotine into the human body.
Section V
MINERAL PRODUCTS
Chapter 25
Salt; sulphur; earths and stone; plastering materials, lime and cement.
Chapter 26
Ores, slag and ash.
Chapter 27
Mineral fuels, mineral oils and products of their distillation; bituminous substances; mineral waxes.
Section VI
PRODUCTS OF THECHEMICAL OR ALLIED INDUSTRIES
Chapter 28
Inorganic chemicals; organic or inorganic compounds of preciousmetals, of rare-earth metals, of radioactive elements or of isotopes.
Chapter 29
Organic chemicals.
Chapter 30
Pharmaceutical products.
Chapter 31
Fertilisers.
Chapter 32
Tanning or dyeing extracts; tannins and their derivatives; dyes, pigments and other colouring matter; paints and varnishes; putty and other mastics; inks.
Chapter 33
Essential oils and resinoids; perfumery, cosmetic or toilet preparations.
Chapter 34
Soap, organic surface-active agents, washing preparations,lubricating preparations, artificial waxes, prepared waxes, polishing or scouring preparations, candles and similar articles, modelling pastes, “dental waxes” and dental preparations with a basis of plaster.
Chapter 35
Albuminoidal substances; modified starches; glues; enzymes.
Chapter 36
Explosives; pyrotechnic products; matches; pyrophoric alloys; certain combustible preparations.
Chapter 37
Photographic or cinematographic goods.
Chapter 38
Miscellaneous chemical products.
Section VII
PLASTICS ANDARTICLES THEREOF; RUBBER AND ARTICLES THEREOF
Chapter 39
Plastics and articles thereof.
Chapter 40
Rubber and articles thereof.
Section VIII
RAW HIDES AND SKINS,LEATHER, FURSKINS AND ARTICLES THEREOF; SADDLERY AND HARNESS; TRAVEL GOODS,HANDBAGS AND SIMILAR CONTAINERS; ARTICLES OF ANIMAL GUT (OTHER THAN SILK-WORMGUT)
Chapter 41
Raw hides and skins (other than fur skins) and leather.
Chapter 42
Articles of leather; saddlery and harness; travel goods, handbags and similar containers; articles of animal gut (other than silk-worm gut).
Chapter 43
Fur skins and artificial fur; manufactures thereof.
Section IX
WOOD AND ARTICLES OFWOOD; WOOD CHARCOAL; CORK AND ARTICLES OF CORK; MANUFACTURES OF STRAW, OFESPARTO OR OF OTHER PLAITING MATERIALS; BASKETWARE AND WICKERWORK
Chapter 44
Wood and articles of wood; wood charcoal.
Chapter 45
Cork and articles of cork.
Chapter 46
Manufactures of straw, of esparto or of other plaiting materials ;basketware and wickerwork.
Section X
PULP OF WOOD OR OFOTHER FIBROUS CELLULOSIC MATERIAL; RECOVERED (WASTE AND SCRAP) PAPER ORPAPERBOARD; PAPER AND PAPERBOARD AND ARTICLES THEREOF
Chapter 47
Pulp of wood or of other fibrous cellulosic material; recovered(waste and scrap) paper or paperboard.
Chapter 48
Paper and paperboard; articles of paper pulp, of paper or of paperboard.
Chapter 49
Printed books, newspapers, pictures and other products of the printing industry; manuscripts, typescripts and plans.
Section XI
TEXTILES AND TEXTILEARTICLES
Chapter 50
Silk.
Chapter 51
Wool, fine or coarse animal hair; horsehair yarn and woven fabric.
Chapter 52
Cotton.
Chapter 53
Other vegetable textile fibres; paper yarn and woven fabrics of paper yarn.
Chapter 54
Man-made filaments; strip and the like of man-made textile materials.
Chapter 55
Man-made staple fibres.
Chapter 56
Wadding, felt and nonwovens; special yarns; twine, cordage, ropes and cables and articles thereof.
Chapter 57
Carpets and other textile floor coverings.
Chapter 58
Special woven fabrics; tufted textile fabrics; lace; tapestries; trimmings; embroidery.
Chapter 59
Impregnated, coated, covered or laminated textile fabrics; textile articles of a kind suitable for industrial use.
Chapter 60
Knitted or crocheted fabrics.
Chapter 61
Articles of apparel and clothing accessories, knitted or crocheted.
Chapter 62
Articles of apparel and clothing accessories, not knitted or crocheted.
Chapter 63
Other made up textile articles; sets; worn clothing and worn textile articles; rags.
Section XII
FOOTWEAR, HEADGEAR,UMBRELLAS, SUN UMBRELLAS, WALKING-STICKS, SEAT-STICKS, WHIPS, RIDING-CROPSAND PARTS THEREOF; PREPARED FEATHERS AND ARTICLES MADE THEREWITH; ARTIFICIALFLOWERS; ARTICLES OF HUMAN HAIR
Chapter 64
Footwear, gaiters and the like; parts of such articles.
Chapter 65
Headgear and parts thereof.
Chapter 66
Umbrellas, sun umbrellas, walking-sticks, seat-sticks, whips, riding-crops and parts thereof.
Chapter 67
Prepared feathers and down and articles made of feathers or of down; artificial flowers; articles of human hair.
Section XIII
ARTICLES OF STONE,PLASTER, CEMENT, ASBESTOS, MICA OR SIMILAR MATERIALS; CERAMIC PRODUCTS; GLASSAND GLASSWARE
Chapter 68
Articles of stone, plaster, cement, asbestos, mica or similar materials.
Chapter 69
Ceramic products.
Chapter 70
Glass and glassware.
Section XIV
NATURAL OR CULTUREDPEARLS, PRECIOUS OR SEMI-PRECIOUS STONES, PRECIOUS METALS, METALS CLAD WITHPRECIOUS METAL AND ARTICLES THEREOF; IMITATION JEWELLERY; COIN
Chapter 71
Natural or cultured pearls, precious or semi-precious stones, precious metals, metals clad with precious metal and articles thereof; imitation jewellery; coin.
Section XV
BASE METALS ANDARTICLES OF BASE METAL
Chapter 72
Iron and steel.
Chapter 73
Articles of iron or steel.
Chapter 74
Copper and articles thereof.
Chapter 75
Nickel and articles thereof.
Chapter 76
Aluminium and articles thereof.
Chapter 77
(Reserved for possible future use in the Harmonized System)
Chapter 78
Lead and articles thereof.
Chapter 79
Zinc and articles thereof.
Chapter 80
Tin and articles thereof.
Chapter 81
Other base metals; cermets; articles thereof.
Chapter 82
Tools, implements, cutlery, spoons and forks, of base metal; partsthere of of base metal.
Chapter 83
Miscellaneous articles of base metal.
Section XVI
MACHINERY ANDMECHANICAL APPLIANCES; ELECTRICAL EQUIPMENT; PARTS THEREOF; SOUND RECORDERSAND REPRODUCERS, TELEVISION IMAGE AND SOUND RECORDERS AND REPRODUCERS, ANDPARTS AND ACCESSORIES OF SUCH ARTICLES
Chapter 84
Nuclear reactors, boilers, machinery and mechanical appliances; parts thereof.
Chapter 85
Electrical machinery and equipment and parts thereof; sound recorders and reproducers, television image and sound recorders and reproducers, and parts and accessories of such articles.
Section XVII
VEHICLES, AIRCRAFT,VESSELS AND ASSOCIATED TRANSPORT EQUIPMENT
Chapter 86
Railway or tramway locomotives, rolling-stock and parts thereof; railway or tramway track fixtures and fittings and parts thereof; mechanical(including electro-mechanical) traffic signalling equipment of all kinds.
Chapter 87
Vehicles other than railway or tramway rolling-stock, and parts and accessories thereof.
Chapter 88
Aircraft, spacecraft, and parts thereof.
Chapter 89
Ships, boats and floating structures.
Section XVIII
OPTICAL,PHOTOGRAPHIC, CINEMATOGRAPHIC, MEASURING, CHECKING, PRECISION, MEDICAL ORSURGICAL INSTRUMENTS AND APPARATUS; CLOCKS AND WATCHES; MUSICAL INSTRUMENTS;
Chapter 90
Optical, photographic, cinematographic, measuring, checking, precision, medical or surgical instruments and apparatus; parts and accessories thereof.
Chapter 91
Clocks and watches and parts thereof.
Chapter 92
Musical instruments; parts and accessories of such articles.
Section XIX
ARMS AND AMMUNITION;PARTS AND ACCESSORIES THEREOF
Chapter 93
Arms and ammunition; parts and accessories thereof.
Section XX
MISCELLANEOUSMANUFACTURED ARTICLES
Chapter 94
Furniture; bedding, mattresses, mattress supports, cushions and similar stuffed furnishings; luminaires and lighting fittings, not else wherespecified or included; illuminated signs, illuminated name-plates and the like; prefabricated buildings.
Chapter 95
Toys, games and sports requisites; parts and accessories thereof.
Chapter 96
Miscellaneous manufactured articles.
Section XXI
WORKS OF ART,COLLECTORS' PIECES AND ANTIQUES
Chapter 97
Works of art, collectors' pieces and antiques.
Section XXII
Special conditions of classification;
Goods that are not intended for economic activity;
Chapter 98
Special conditions of classification;
Chapter 99
Goods that are not intended for economic activity
For statistical purposes in foreign trade, Georgian mineral and fresh drinking waters are included in headings 2201 and 2204 of HS and are detailed at the eleven-digit level (for example"Borjomi" (2201 10 190 01), "Sairme" (2201 10 190 03), "Bakhmaro" (2201 90 000 04)etc.) and appellation of origin controlled wines such as e.g. "Tsinandali" (2204 21 930 01), "Kakheti" (2204 21 930 11), "Khvanchkara" (2204 21 940 07), "Kindzmarauli" (2204 21 940 01) and others.
In order to simplify the customs procedures in the SES ESN, chapter 98 is used for some types of second-hand consumption goods, and chapter 99 is used to classify goods intended for non-commercial activities exempted from customs duties by the Tax Code of Georgia.
9.2. Classification rules
The correct classification of goods is one of the actual issues, since according to the given commodity code, the determination of customs tariff and other taxes and fees, as well as non-tariff measures, prohibitions and restrictions is carried out for specific goods participating in foreign trade. Effective use of customs statistics for the implementation of customs control and foreign trade policy, etc., depends on the accuracy of the classification of goods.
Classification according to the commodity nomenclature means determining the numerical code of this commodity, i.e. classification of goods under a specific commodity heading, subheading and sub-subheading defined for this commodity in the Harmonized System.
Goods can be classified according to various factors, including form, condition, function and composition.
As an example of classification according to the form of goods, we can consider aluminum: if aluminum is in powder form, it is classified under subheadings 7603 10 and 7603 20; Aluminum in the form of plates, sheets, strips or ribbons is classified under subheadings 7606 11-7606 92; and aluminum in the form of pipes and tubes is classified under subheadings 7608 10-7608 20.
One of the examples of classification according to constituent materials are tubes and pipes:
- tubes and pipes of polymers of ethylene, propylene, vinyl chloride and of other plastics are classified under subheadings 3917 21-3917 39;
- tubes and pipes of unhardened rubber pipes are classified under subheadings 4009 11-4009 42;
- tubes and pipes made of ceramic materials are included in 6906 00 in subheading;
- tubes and pipes of cast iron are classified under subheading 7303 00, and of the remaining black metals - under headings -7304-7306 etc.
An example of a product classified by function is a carbon monoxide (carbon monoxide, СО) detector. If the detector detects and displays the results of gas measurements, it is classified under subheading 9027 10, which includes instruments and apparatus for physical or chemical analysis (for example, polarimeters, refractometers, spectrometers, gas or smoke analyzers), for measuring or checking viscosity, porosity, expansion, surface tension instruments and apparatus, instruments and apparatus for measuring or controlling the quantity of heat, sound or light (including exponents) and microtomes.
If the detector detects, but does not record or display the results of the analysis of the concentration of the flammable gas, it is classified under subheading 8531 10, which includes protective signaling devices or devices for providing fire signals and similar devices.
The classification of goods in the National Commodity Nomenclature of Foreign Economic Affairs (SES ESN) is carried out according to the general rules of interpretation of the harmonized system. These are the six rules regulating classification according to the "Harmonized Commodity Description and Coding System", which must be applied consistently when determining the commodity code:
RULE 1
The titles of Sections, Chapters and sub-Chapters are provided for search simplification only; for legal purposes, classification shall be determined according to the terms of the headings and any relative Section or Chapter Notes and, unless otherwise provided by such texts, according to the provisions of next rules.
Rule I clearly indicates that in the classification of goods priority is given to the names of the headings and the notes given for each section and chapter, which indicates that the classification of goods should be started by finding the heading in which the name of the goods is given, and the names of sections, chapters and subchapters should be used to determine the direction of the search.
In addition, we must take into account the corresponding notes of sections and chapters. Section notes apply to all chapters that section includes.
Notes often indicate the exclusion of a particular good from a particular chapter/heading/subheading or the inclusion of a good in a chapter/heading/subheading. The notes also provide definitions of terms and recommendations on classification.
RULE 2
a) Any reference in a heading to an article shall be taken to include a reference to that article incomplete or unfinished, provided that, as presented, the incomplete or unfinished article has the essential character of the complete or finished article. It shall also be taken to include a reference to that article complete or finished (or falling to be classified as complete or finished by virtue of this rule), presented unassembled or disassembled.
Rule 2(a) is used when classifying goods that are not assembled or disassembled, as well as goods that are missing any part or that require some technological treatment in order to obtain a finished form.
Rule 2(a) extends the scope of any heading in which a particular good is included in that heading not only in an assembled but also in an unassembled or unfinished form, provided that the unassembled or unfinished article bears the essential characteristics of the assembled or finished article.
b) Any reference in a heading to a material or substance shall be taken to include a reference to mixtures or combinations of that material or substance with other materials or substances. Any reference to goods of a given material or substance shall be taken to include a reference to goods consisting wholly or partially of such material or substance. The classification of goods consisting of more than one material or substance shall be made according to the principles of Rule 3.
Rule 2(b) applies only when the heading describes the material or substance of which the goods are made.
Rule 2(b) explains that if no heading is found in the nomenclature, in the heading of which the name of the goods sought is given, then it is necessary to distinguish the main material from which the goods are made and to find the heading in which the articles made of this material are included.
Rule 2(b) extends any heading relating to a material or substance to include mixtures or compounds of that material or substance with other materials or substances;
RULE 3
When by application of Rule 2 (b) or for any other reason, goods are prima facie, classifiable under two or more headings, classification shall be performed as follows:
(a) The heading which provides the most specific description shall be preferred to headings providing a more general description. But where each of two or more headings relates to only a part of the materials or substances of a mixture or a composite article, or to a part of the goods presented in a set intended for retail sale, then those headings shall be treated as having equal value in relation to those goods, even if any of them provides a more complete or accurate description of the item
(b) Mixtures, composite goods consisting of different materials or made up of different components, and goods put up in sets for retail sale, which cannot be classified by reference to 3 (a), shall be classified as if they consisted of the material or component which gives them their essential character, as far as this criterion is applicable.
(c) When goods cannot be classified by reference to 3 (a) or 3 (b), they shall be classified under the heading which occurs last in numerical order among those which equally merit consideration.
According to Rule 3(a), in the classification of goods, a heading which provides the most specific description shall be preferred to headings providing a more general description.
Rule 3 (b) applies if it is not possible to apply Rule 3(a).
Rule 3(b) applies to mixtures, combined goods made up of different materials, goods made up of different components and goods contained in sets intended for retail sale. In all mentioned cases, the goods must be classified according to the material or component that determines their essential characteristic, if the use of such a criterion is applicable.
According to Rule 3(c), if the goods cannot be classified using rules 3(a) or 3(b), ie., when none of the available headings provides a sufficiently precise description of the goods or it is not possible to determine which material or component gives the goods their main characteristics, the product must be classified in the last heading of the ascending order of headings to which the goods can be assigned with equal force.
RULE 4
Goods which cannot be classified in accordance with the above Rules shall be classified under the heading appropriate to the goods to which they are most akin.
Rule 4 Applies to goods that cannot be classified according to the rules I-III. It is used if no heading is suitable for the classification of the goods in question and provides for the assignment of such goods to the heading in which the goods most similar to the goods in question are included.
Rule 4 is convenient for classifying new products that are not yet reflected in commodity headings.
When classifying goods according to Rule IV, the given item must be compared with similar goods to determine the most similar goods. Similarity can be determined by properties such as materials, functions, form, purpose, manufacturing methods.
RULE 5
In addition to the foregoing provisions, the following Rules shall apply in respect of the goods referred to therein:
(a) Camera cases, musical instrument cases, gun cases, drawing instrument cases, necklace cases and similar containers, specially shaped or fitted to contain a specific article or set of articles, suitable for long-term use and presented with the articles for which they are intended, shall be classified with such articles when of a kind normally sold therewith. However, this rule does not apply to a package, which, forming a single whole with the packaged goods, gives the latter an essentially different character.
(b) Subject to the provisions of subsection (a) of this rule, packaging materials and containers supplied with the goods contained in them shall be classified collectively if they are of a type normally used for packing such goods. However, the application of this provision is not mandatory if such packaging materials or containers are clearly suitable for repeated use.
Rule V(a) applies to the following packaging materials:
- shaped or adapted to contain a particular product or set, ie. designed specifically for that particular commodity. Some containers replicate the shape of the commodity that is placed in that container;
- Suitable for long-term use, i.e. has the same durability as the goods for which the container is intended; Often, such containers have the function of protecting the product during transportation, handling, etc.;
- Presented together with the goods for which they are intended, although these goods may be packed separately for ease of transport;
- Sold together with the product.
Rule V(b) governs the joint classification of packaging materials and containers other than those covered by Regulation V(a). For that reason, these packaging materials must meet the following conditions:
- must be presented together with the goods;
- Must be the usual packaging used for the goods in question.
Rule V(b) does not apply if it is clear that the packaging material and tar/container can be reused, for example metal containers and reservoirs for the transport of compressed gas.
Suitability for tar reuse can be determined according to the following characteristics:
- The integrity of the tar is not violated when it is opened;
- According to the technical documentation, it is clear that the tar construction is multiple;
- It is clear from the contract between the supplier and the buyer that the packaging is subject to return.
RULE 6
For legal purposes, the classification of goods in the subheadings of a heading shall be determined according to the terms of those subheadings and any related Subheading Notes and, mutatis mutandis, to the above Rules, on the understanding that only subheadings at the same level are comparable. For the purposes of this Rule, the relative Section and Chapter Notes also apply, unless the context otherwise requires.
For the purposes of Rule VI, “one-level subposition” means subpositions with one dash (Level 1) or subpositions with two dashes (Level 2).
According to Rule VI, in order to determine the full eleven-digit HS code, we must follow the text of the nomenclature below, from subpositions with one dash to subsubposition with two dashes, then to subsubposition with three dashes, and so on.
Once a one-dash subheading that provides a more accurate description of the goods is selected, and if that subheading itself is divided, then and only then is the designation of the two-dash subheading considered and one of them selected.
When determining the commodity code of SES ESN:
- It is necessary to strictly observe the sequence of interpretation rules;
- It is necessary to identify the goods, ie. determining the quality, properties, function, etc. of the goods, which is necessary for the correct application of the general rules of interpretation and subsequent accurate classification, and we should not rely only on the name of the goods;
- We must understand the punctuation marks: comma (,), colon (:) and semicolon (;) and hyphen () value in position names. for example:
In the description of heading 3701 “Photographic plates and film in the flat, sensitised, unexposed, of any material other than paper, paperboard or textiles; instant print film in the flat, sensitised, unexposed, whether or not in packs”, goods before the first comma "photographic plates and photographic films in the flat", carries all the properties listed after the first comma (sensitized, unexposed,) and can be made of “any material other than paper, paperboard or textiles”.
It should also be noted that if the goods are classified according to their function in the heading and there is no reference to materials, this means that the goods referred to can be made of any materials.
In the above heading 3701, the punctuation mark ";" means that after this mark, there is the description of the goods (“instant print film in the flat”) different from the goods given before ";" and characteristic "Instant" does not apply to goods described before the semicolon.
A colon ":" at the end of the heading means that the goods described in that heading or subheading are detailed below at the next level of the heading/subheading. eg: Heading 3701 is detailed as follows:
#tableId {null margin: 0 auto !important; }#tableId {null margin: 0 auto !important; }#tableId {null margin: 0 auto !important; }#tableId {null margin: 0 auto !important; }#tableId {null margin: 0 auto !important; }#assignedTableId-1706693129234 {width: 409.5pt; margin-left: 58.25pt; margin: 0 auto !important; }3701
Photographic plates and film in the flat, sensitised, unexposed, of any material other than paper, paperboard or textiles; instant print film in the flat, sensitized, unexposed, whether or not in packs:
3701 10 00
– For X-ray:
3701 10 000 01
– –medical, Dental or Veterinary for purposes
3701 10 000 09
– –other
3701 20 000 00
– -Instant print film
3701 30 000 00
– Other plates and film, with any sideexceeding 255 mm
The number of dashes given before the name of the detailed subheading in the commodity nomenclature indicates the depth of detailing and makes it easier to search for specific goods according to the defined algorithm: a one-dash subheading is detailed into two-dash subheadings, a two-dash subheading is detailed into three-dash subheadings, etc. In the sub-headings and sub-subheadings of the nomenclature, in the name of which the word "other" is indicated, the goods of the given heading, which are not classified in the previous sub-headings/sub-subheadings, will be included. Any goods for which a clear description is not given in the headings of the preceding sub-headings and sub-sub-headings shall be included in the last "Other" given under the relevant sub-headings and sub-sub-headings. e.g. Heading 3503 includes Gelatin (including gelatin in rectangular (including square) sheets, whether or not surface-worked or coloured) and gelatin derivatives; isinglass; other glues of animal origin, excluding casein glues of heading 35.01. The said position is detailed in the following commodity codes:
3503 00 100 00–Gelatin and its Derivatives
3503 00 800 00- other
In this case, 3503 00 800 00 the commodity code will include isinglass of heading 3503; other glues of animal origin, excluding casein glues of heading 35.01.
9.3. Preliminary decisions
The customs authority issues a preliminary decision on the commodity code based on the application of the interested person.
A preliminary decision on the commodity code is mandatory for the customs authority only in relation to the goods for which the customs formality is carried out, after the entry into force of the above decision.
A preliminary decision is binding on the owner of the decision for execution from the date of delivery of this decision to him.
A preliminary decision on a commodity code is valid for 3 years after its entry into force.
When carrying out separate customs procedures, the holder of the preliminary decision must confirm that the declared goods fully correspond to the goods described in this decision.
It is not allowed to change the preliminary decision. A preliminary decision will be invalid if it is issued based on incorrect or incomplete information.
A preliminary decision on a commodity code terminates prematurely if:
a) the act of Georgian legislation, on the basis of which the said decision was issued, was changed or cancelled;
b) The national commodity nomenclature of foreign economic affairs has been changed, and this change refers to the goods provided for by the above decision.
In case of premature termination of the validity of the preliminary decision or declaration of invalidity, the validity of this decision may be continued for the performance of the binding contract, which is based on the said decision and which was concluded before its termination or declaration of invalidity.
Such delay shall not exceed 6 months from the date of early termination or invalidation of the preliminary decision.
In order for the owner of the preliminary decision to benefit from the postponement, he must apply to the customs authority within 30 days after the earlier termination of the said decision or its declaration as invalid.
This application must contain information about the quantity of goods for which the extension of the term is requested. The customs authority is authorized to make a decision on the extension of the deadline and notify the owner of the preliminary decision without delay, but no later than 30 days after submitting all the information necessary for making the decision.
Submitting an application for a preliminary decision
An interested person, with an electronic application for a preliminary decision on the commodity code (Appendix No. 1-III-01) applies to the Revenue Service of the Ministry of Finance of Georgia (hereinafter referred to as the Revenue Service) through the website of the Revenue Service (rs.ge).
One application shall be submitted for one commodity only. In case of failure of the electronic system, the application can also be submitted in material form. The application must contain a list of documents actually submitted for making a preliminary decision.
Submitting an application for a preliminary decision implies the applicant's consent to the decision and all the data specified in it, including photos and images, proactive publication (posting on electronic resources), taking into account the protection of personal data, information belonging to state, commercial, professional, customs secrets.
When referring to the goods in the statement, the commercial name of the goods is written as it is given in the contract or invoice and its description depending on the type of goods. In addition, the description of the goods should include the description of the main characteristics and properties that provide the necessary information for the purposes of classification, for example: the purpose of the goods; the main material from which the goods are made; the function to be performed by the goods; the degree of its processing (if such data determine its properties); brand name established by the manufacturer; model etc.
Issuance of a preliminary decision
The application will be reviewed by the customs department and the permanent working group created by the head of the revenue service for the purpose of preparing the draft of the preliminary decision. The composition of the working group is approved by the order of the head of the revenue service. The Customs Department will ensure the preparation and presentation of the issue for discussion at the working group meeting.
The draft of the preliminary decision on the commodity code for the goods is prepared by the Division of Customs Valuation and Classification of Goods, according to Article 16 of the Regulations of the Customs Department approved by the order of the Head of the Revenue Service No. 2742 dated June 2, 2011, "On the Approval of the Regulation of Structural Units of the Legal Entity of Public Law - the Revenue Service".
If submitted documents and/or information are not sufficient for a preliminary decision, the customs department shall notify the applicant of the existence of a deficiency and the need to eliminate it, and shall set a deadline for the elimination of the deficiency, which shall not exceed 30 days. In this case, the flow of the period for making a preliminary decision is suspended until the defect is eliminated and/or until the specified period expires.
The customs body is entitled, if necessary, to request the submission of a report issued by a laboratory with appropriate accreditation in Georgia, the related costs of which shall be reimbursed by the applicant.
In case of non-elimination of the defect within the established period, the Revenue Service is entitled to make a decision to leave the application unconsidered.
The Revenue Service is authorized to refuse to issue a preliminary decision in the presence of the following grounds:
a) a request for a preliminary decision by a person on the goods for which a preliminary decision has already been issued;
b) a person's request for a preliminary decision on the goods that have already been declared in the customs procedure (except for the customs warehouse) or in re-export;
c) motivated decision of the head of the revenue service or a person empowered by him.
The draft of the preliminary decision is submitted for approval to the head of the revenue service or to a person empowered by him. A preliminary decision on the commodity code is issued in accordance with the form established by Annex No. 1-III-03. If the person acts in accordance with the prior decision, it is not allowed for the controlling/law enforcement authority to make a decision contrary to the prior decision and charge a tax and/or sanction.
Appendix No. 1-III-01
#tableId {null margin: 0 auto !important; }#tableId {null margin: 0 auto !important; }#tableId {null margin: 0 auto !important; }#tableId {null margin: 0 auto !important; }#tableId {null margin: 0 auto !important; }#assignedTableId-1706693163599 {margin-left: -0.25pt; margin: 0 auto !important; }Revenue Service
statement
To make a preliminary decision on thecommodity code
In thecase of a natural person - the name and surname of the interested person
In thecase of a legal entity - name, head's name, surname
Address of the person
Identification number (if any)
Pleaseissue a preliminary decision on the commodity code
Commercial name and description of goods
#tableId {null margin: 0 auto !important; }#tableId {null margin: 0 auto !important; }#tableId {null margin: 0 auto !important; }#tableId {null margin: 0 auto !important; }#tableId {null margin: 0 auto !important; }#assignedTableId-1706693163603 {margin-left: -0.25pt; margin: 0 auto !important; }
(signatureof the interested person)
#tableId {null margin: 0 auto !important; }#tableId {null margin: 0 auto !important; }#tableId {null margin: 0 auto !important; }#tableId {null margin: 0 auto !important; }#tableId {null margin: 0 auto !important; }#assignedTableId-1706693163606 {margin-left: -0.25pt; margin: 0 auto !important; }
(day)
(month)
(year)
#tableId {null margin: 0 auto !important; }#tableId {null margin: 0 auto !important; }#tableId {null margin: 0 auto !important; }#tableId {null margin: 0 auto !important; }#tableId {null margin: 0 auto !important; }#assignedTableId-1706693163609 {margin-left: -0.25pt; margin: 0 auto !important; }
(signatureof the interested person)
#tableId {null margin: 0 auto !important; }#tableId {null margin: 0 auto !important; }#tableId {null margin: 0 auto !important; }#tableId {null margin: 0 auto !important; }#tableId {null margin: 0 auto !important; }#assignedTableId-1706693163613 {margin-left: -0.25pt; margin: 0 auto !important; }
(day)
(month)
(year)
Appendix No. 1-III-03
#tableId {null margin: 0 auto !important; }#tableId {null margin: 0 auto !important; }#tableId {null margin: 0 auto !important; }#tableId {null margin: 0 auto !important; }#tableId {null margin: 0 auto !important; }#assignedTableId-1706693163622 {margin-left: -0.25pt; margin: 0 auto !important; }Revenue Service
interested person
Preliminary decision on commodity code based on Article 22 of the Customs Code of Georgia
Manufacturer of goods
Document ssubmitted with the application:
decisionmaking justification
Product description:
Commodity code according to HS
A person authorized to make a decision
Decision number and date
No. –––“––––“ ––––––––––––––– 20 year.
Tbilisi
––––––––––––––––––– ––––––––––––––––
(name surname)(signature)
Place of stamp
A preliminary decision can be appealed in accordance with the procedure established by Chapter IV of the Customs Code of Georgia and Chapter XIV of the Tax Code of Georgia, within 30 days from the delivery of the preliminary decision, through submission an appeal in the system of the Ministry of Finance of Georgia - in written or electronic form(add.: Tbilisi, V. Gorgasli St. No. 16), Also, in the Tbilisi City Court(miss.: Tbilisi, Aghmashenebeli alley, 12th km. No. 6) in accordance with the procedure established by the legislation of Georgia.
Section 10. The Control lists
10.1. Structure of the dual-use items list
The list of military products and dual-use goods, whose export, import, transit, related brokerage services and technical assistance are subject to permit control (control lists) is approved by Annexes 1 and 2 of Decree No 394 of 13 June 2014 of the government of Georgia. The list of dual-use goods of Georgia is compatible with the Council Regulation (EC) No 388/2012, setting up a Community regime for the control of exports, transfer, brokering and transit of dual-use goods.
In order to find products on the list, the knowledge of thematic and structural composition of the list is very important. The control list covers the list of dual-use goods and general notes, which refer to all categories of products of the list.
The list includes:
▪ The list of the dual-use items;
▪ General notes, which apply equally to all categories of products in the list;
According to general notes:
If a product is designed or modified for military use, reference should be made to the military list;
If an item on the list is the principal element of any device, and this item can be removed and used for dual purposes, then the control of this item is carried out in accordance with the provisions of the list;
Goods specified in the control list include both new and used goods;
In some instances, chemicals are listed by name and CAS number (chemical substance identification number). CAS numbers are shown to assist in identifying a particular chemical or mixture, irrespective of nomenclature. Nevertheless, CAS numbers cannot be used as unique identifiers because some forms of the listed chemicals have different CAS numbers, and mixtures containing a listed chemical may have different CAS numbers.
The control list covers the following:
Nuclear Technology Note (NTN), which establishes general rules for the control of nuclear technologies alone;
General Technology Notes (GTN) and General Software Notes (GSN) establish general rules for the control of technologies and software of all categories except for nuclear ones;
Acronyms and abbreviations, which explain acronyms and abbreviations used in the list. For example, AVLIS means Atomic Vapor Laser Isotope Separation, AISI means American Iron and Steel Institute, etc.;
Definitions of the terminology in the list, which explains definitions of terminology found in the list with double quotation marks. For example, according to the definition given in section Definition of Terms, "Aircraft" (1, 6, 7, 9) means a fixed wing, swivel wing, rotary wing (helicopter), tilt rotor or tilt-wing airborne vehicle. In the control list the term "Aircraft" is everywhere found with "double quotation marks" within the meaning of the section Definition of Terms.
The numbers in the brackets after the defined term (1, 6, 7, 9) mean that the reference is made to the relevant categories (in this case, reference is made to the categories 1, 6, 7 and 9). It is noteworthy, that the definitions of the terms placed in single quotation marks in the list are given in Technical Notes to the corresponding ECCN numbers (Export Control Classification Number - ECCNs are five-character alpha-numeric designations used to identify dual-use items for export control purposes);
Technical Notes, which are of great importance in the process of reading the list, since technical notes determine the conditions and characteristics necessary for goods to be included in the control list and specify which goods are controlled and what technologies are used to describe the terms ;
Note, which as a rule, specifies a specific ECCN number or sub-control area, and in most cases, exclude products from the list;
N.B. (Nota bene) - indicates that the definition in the entry is of particular importance and indicates one or more of the recordings in which the specific products should be controlled. Following a specific point, N.B. often indicates ECCN number that contains similar item contained in the specified ECCN and/or provides brief explanations about the product or terms.
Example of how to read Technical Note, Note and N.B. in the list:
1A006 Equipment, specially designed or modified for the disposal of improvised explosive devices
and components and accessories specially designed for the purpose:
N.B. SEE ALSO MILITARY GOODS CONTROLS.
a. remotely operated vehicles;
b. 'Disruptors'.
Technical note:
'Disruptors' are devices specially designed for the purpose of preventing the operation of an explosive device by projecting a liquid, solid or frangible projectile.
Note: 1A006 does not control equipment when accompanying its operator.
In this example:
- N.B. gives reference to the military list, which means that this equipment can also be controlled by a list of military goods;
- Technical Note explains the definition of 'disruptors';
- Note defines the condition in which case the listed device in 1A006 is not controlled.
Some ECCN numbers (e.g. 0C001*, 0B004*, 0B002*, 0B001*, etc.) are marked with asterisks (*), which means that the import, export, transit, related brokerage services and technical assistance of the products classified in this ECCN are subject to permit control, while the permit shall be issued upon a recommendation of the Standing Commission of Military-Technical Issues of the Ministry of Defense of Georgia.
A similar rule of control applies to the circulation of products marked with so-called two asterisks (**), but ECCN numbers are not marked with two asterisks on the list.
Any of the listed items are considered to be marked with two asterisks if the export, import, transit, related brokerage service and technical assistance are provided to/from the country under the United Nations Security Council Resolution sanctions/ embargoes. The principle of two asterisks is the principle of control of the products on the list according to the final destination or consignor country.
It is also possible to export the goods under an export permit that are not included in the list, but its technical and functional characteristics indicate that these subjects can contribute significantly to the design, development or production of weapons of mass destruction and the means of their delivery or military products. The form of control of such products is known as the Catch-All Clause and is focused on not only the lists, but also on the end-user and the end-use of products.
Some of the items that have the same functional use and technical name found in several entries in the control list (references are made by N.B.s), which is explained by the fact that the control of each specific item is carried out by different non-proliferation and security regimes. Accordingly, the scope of use and technical parameters of these items are different.
Example:
"Isostatic presses" are devices that are widely used in mechanical engineering and nuclear and aerodynamic industry to produce high resistance and density details from metal, ceramic and graphite (carbon) powder materials. Isostatic presses are classified in three different ECCN numbers: 2B004, 2B104, and 2B204.
As we can see, the third numbers of ECCN differ (0, 1, 2), which means that isostatic presses are controlled by the Wassenaar Arrangement (WA), the Missile Technologies Control Regime (MTCR) and the Nuclear Supply Group (NSG) and their inclusion in the lists is due to the fact that isostatic presses can be used for the production of components necessary for military, missile and nuclear products. According to the specific fields of application, the technical parameters (chamber cavity inside diameter, controlled thermal environment and working pressure) for isostatic presses included in different ECCNs may vary.
The types of products on the list subject to control are classified under ECCN numbers. The knowledge of their structure will be very helpful in the process of identification and classification of goods.
The list of dual-use items consists of 10 categories of products. Products are categorized in terms of use and technical and functional purposes. Digits from 0 to 9 are indicative of each category:
Category 0 Nuclear materials, facilities and equipment;
Category 1 Special materials and related equipment;
Category 2 Processing of materials;
Category 3 Electronics;
Category 4 Computers;
Category 5 Telecommunications and "information security";
Category 6 Sensors and lasers;
Category 7 Navigation and avionics;
Category 8 Marine;
Category 9 Aerospace and propulsion.
The first numeric symbol of ECCN in the control list points to the category (e.g.: 1C111).
Each category includes groups formed according to technical application identified by alphabet letters
A, B, C, D, E:
A. Systems, equipment, components;
B. Testing, inspection and production equipment;
C. Materials;
D. Software;
E. Technologies.
In the control list, the second alphabetic symbol of ECCN indicates the group (e.g.: 1C111).
A common control list of dual-use items includes products, technologies and software listed in nonproliferation and security regimes, which are: Nuclear Suppliers Group (NSG), Missile Technology Control Regime (MTCR), Australia Group (AG), Wassenaar Arrangement (WA) ) and The Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on their Destruction (the Chemical Weapons Convention or CWC)
In the control list, the third numeric symbol of ECCN points to the relevant nonproliferation and security regime in the following order:
0 - Wassenaar Arrangement (WA);
1 - Missile Technology Control Regime (MTCR);
2 - Nuglear Suppliers Group (NSG);
3 - Australia Group (AG);
4 - Chemical Weapons Convention (CWC).
If the third numeric symbol of ECCN is "0", it means that items under this ECCN are listed in WA dual-use items control list (e.g.: 1A001-1A008, 1B001-1B003, 1C001-1C012 etc.).
If the third numeric symbol of ECCN is "1", it means that items under this ECCN are listed in MTCR second-category control list, implying that they can be used not only in missile technologies (e.g.: 1A102, 1B102, 1B115-1B119 , 1C101-1C111, 1C116-1C118 etc).
If the third numeric symbol of ECCN is "2", it means that items under this ECCN are listed in Annex 2 of NSG guidelines (INFCIRC/254, Part 2), and are dual-use goods and technologies related to the nuclear field that can be used for civil purposes, as well as nuclear fuel cycles and other nuclear processes (1A202-1A227, 1B201-1B233, 1C202-1C240).
If the third numeric symbol of ECCN is "3" or "4", it means that items under this ECCN are listed according to AG or CWC and are related to manufacturing chemical or biological weapons (e.g.: 1C350, 1C351-1C354, 1C450 etc .).
For example: under ECCN 1C111, propellants and constituent chemicals for propellants are controlled. Let's try to read this ECCN symbol by symbol:
- The first numeric symbol "1" implies that this item is included in the first category and is a special material; - The second alphabetic symbol "C" implies that this item is included in the group of materials;
- The third numeric symbol "1" implies that the item control is carried out in accordance with the MTCR, and these items can be used for the creation of missiles;
- The fourth and the fifth symbols "11" point to relevant numerations in the list.
10.2. Search for an item in the control list
Items in the control list can be searched using several methods, such as:
10.2.1. Search by type of product and its industrial and technical purpose.
The use of this method requires relatively deep knowledge and understanding of the control list and is practiced by specialists and experts authorized to identify such items and issue permits for their transfer.
We looked at the structure of the control list and saw that dual-use items are classified by five-digit codes (ECCNs), and each character of this code indicates a product category, group, and non-proliferation regime. As a result of the analysis of technical documentation and other information for a specific product, you can find the products you are looking for in the list in connection with the general technical name of the product, production and technical purpose, scope, functionality, technical parameters and, other data.
Now, let us discuss an example according to a specific contract:
Exporter: Georgian company;
Importer: Azerbaijani company;
Goods according to the contract: Wine production equipment and auxiliary equipment;
Goods according to the invoice: Tank (reservoir), brand ENOTANK[77];
Manufacturer of the goods: ALBRIGI TECHNOLOGIES, ITALY;
Open source: http://www.albrigi.com/ru/product/SP.40/Enotank
Commodity HS code: 7309 00 590 00.
Identification process:
- The reservoir is used in the process of production, storage, mixing, etc. of any substance (in this case of wine). In addition, according to the manufacturer's specifications, Albrigi's reservoirs are also used in the chemical industry. That means that, according to categories, the product can be classified under Category 2 - Material Processing;
- According to the industrial/technical use, a reservoir is a manufacturing equipment or component of this device, through which we produce materials/substances (in this case wine), so it belongs to group B (Test, Inspection and Production Equipment);
- The manufacturer's website says that Albrigi's reservoirs are also used in chemical industries. Equipment and chemicals that can be used to obtain agents for chemical weapons are controlled by an Australia Group regime, indicating a third numerical symbol of ECCN number - 3.
- Thus, we have received the first three characters of the ECCN number of the control list: 2B3.
If we search for ECCN numbers on the control list that starts with 2B3, we will see that there are only three entries: 2B350, 2B351 and 2B352, and the product search area will be significantly reduced. Since our product is related to the chemical industry, it is most likely that what we have to look for is the ECCN 2B350 (chemical manufacturing facilities, equipment and components) and here is the result: On the control list, reservoirs used in the chemical industry are classified under point "c" of ECCN 2B350:
- 2B350.c - Storage tanks, containers or receivers with a total internal (geometric) volume larger than 0.1 m3 (100 liters), where all surfaces that come in direct contact with the chemical(s) processed or contained are made of any of the following materials:
[77] http://www.albrigi.com/ru/product/SP.40/Enotank
1. Alloys with more than 25% of nickel and 20% of chromium by weight;
2. Fluorine polymers (polymeric or elastomeric materials with more than 35% of fluorine by weight);
1. Alloys with more than 25% of nickel and 20% of chromium by weight;
2. Fluorine polymers (polymeric or elastomeric materials with more than 35% of fluorine by weight);
3. Glass (including vitrified or enameled coatings or glass lining);
4. Nickel or alloys with more than 40% of nickel by weight;
5. Tantalum or tantalum alloys;
6. Titanium or titanium alloys;
7. Zirconium or zirconium alloys; or
8. Niobium (columbium) or niobium alloys;
To complete the identification process, we have to compare parameters given in ECCN number 2B350.c to the technical specifications of an ENOTANK reservoir:
ENOTANK capacity is 300 liters, the inner surface is coated in a mirror way and is not deposited. The material of which ENOTANK is produced is AISI 304/L alloy with the following chemical composition:
Alloy C Si Mn P≤ S≤ Cr Mo Ni Other
304L ≤0.03 ≤ 0.75 ≤2.00 0.045 0.03 18- 20 - 8-12
According to 2B350.c.1, the reservoir is controlled if the alloy under which it is manufactured, contains more than 25% of nickel and more than 20% of chromium. Alloy AISI 304/L contains 8-12% of nickel and 18-20% of chromium. Thus, the reservoir ENOTANK is not a dual-use product.
10.2.2. Keyword search methods on the control list
The list of dual-use goods is approved by the Ordinance No. 394 of the government of Georgia of 13 June 2014 and available to interested persons on official websites of various agencies[78];
[78] https://matsne.gov.ge/ka/document/view/2372203?publication=0
Each product, machinery, systems, equipment, components, chemical and biological materials, etc. are included in the list in a way of single commonly recognized and specific technical name and not synonyms (e.g. "pump", "compressor", "pressure sensors" etc.);
The general technical names commonly used in the list to mark a group of products with the same properties are the main common features of this group, such as "ceramic base materials", "liquids and lubricants", "magnetic metals", "optical materials ", etc.
In some instances, chemicals are listed by name and CAS number (US Chemical Abstracts Service) which is an individual registry number for all chemicals (e.g. sulfur monochloride (10025-67-9).
Note: According to general notes of the control list, CAS numbers cannot be used as unique identifiers, because some forms of the listed chemical have different CAS numbers, and mixtures containing a listed chemical may also have different CAS numbers.
Sometimes the name of the product is indicated in Latin letters on the control list (e.g. bacteria in 1C351.c, Bacillus anthracis, Chlamydia psittaci, etc.).
Given the abovementioned, you can find products on the control list using keywords: Write the text in the text search field without a suffix (e.g. "pump", "valve", "reservoir", "salmonella", "zirconium", "aluminum ", "uranium", "10025-67-9" etc.) and search for a product in the entire text.
It is noteworthy that products with similar technical denominations and functions are often listed on the list several times under different categories, groups or non-proliferation regimes, and therefore, we can find the same entry several times. In this case, we have to choose the products that are closely related to our products.
10.3. How to use the correlation list
With the aim of simplifying the use of dual-use items control list and simplifying the identification of goods, the Customs Department of Georgia has developed a so-called correlation table, in which each item involved in the control list, is defined by an eleven-digit code of the national commodity nomenclature of foreign economic affairs (hereinafter Harmonized System Commodity Code or HS commodity code).
The correlation table is approved by the order of Minister of Finance of Georgia No 292 of 30 September 2014. The table comprises 4 columns:
- The first column contains the commodity codes at the eleven-digit levels;
- In the second column, if this HS code does not belong to a particular item, the eleven-digit code name is given in the name of the heading (4-digit level HS commodity code), subheading (6-digit level HS commodity code) and sub-subheading (9-digit level HS commodity code) names of the code that are separated by the corresponding hyphen (for example, the following entries are made for HS commodity code 2844 10 100: - - natural uranium: - - - unwrought; waste and scrap);
- The third column contains the ECCN number, the Latin symbol denoting the paragraph and the number indicating the subsection (e.g. 1C450.a.7). The E, D symbol is indicated for products which may be subject to control due to transmission of technologies or software;
- The fourth column indicates the name and description of the product according to the ECCN, paragraph and subsection (e.g. toxic chemicals and toxic chemicals precursors such as: Chloropicrin: Trichloronitromethane (76-06-2)[79].
[79] Note: It is noteworthy that the fourth column of the correlation table does not include "Notes", "Technical Notes" and "NB" in which the condition is often decisive for the identification of goods. Therefore, we need to get full text of the description defined for the products classified in a particular ECCN on the control list. For example, the correlation table does not contain "Note 3" for Trichloronitromethane, according to which 1C450 does not control chemical mixtures in which no individually specified chemical constitutes more than 1 % by the weight of the mixture
One HS commodity code may be repeated several times in the table, which is due to the fact that the products with the same technical description may be found in the control list in different ECCN numbers or that various products or components of different denominations may be classified under the same HS code.
For example, HS code 7219 32 100 00 (corrosion-resistant flat-rolled stainless steel) corresponds to the following entries in the control list: ECCN 1C116 and ECCN 1C216 for maraging steel, ECCN 1C118 for titanium-stabilized duplex stainless steel and ECCN 1A005 for components for body armor.
For a specific ECCN number, a table may contain a number of HS codes derived from the specificity of the classification under the commodity nomenclature that the goods may be attributable under two or more headings.
For example, in the control list, titanium-stabilized duplex stainless steel under ECCN 1C118 corresponds to the following entries in the correlation table: 7219 13 100 00, 7219 14 100 00, 7219 23 000 00, 7219 24 000 00, 7219 32 100 00 and 7219 35 100 00.
While using the correlation table, we must remember the following:
- If the product is classified under the HS code in the correlation table, this does not always mean that it is a dual-use item;
- If a particular HS commodity code cannot be found in the correlation table, this does not always mean that it is not a dual-use item;
- The classification of items on the basis of the control list shall be carried out by determining the conformity of the technical characteristics of these goods with the technical characteristics indicated in the list and according to the explanations, technical specifications and comments indicated for this particular product, not by the commodity HS code.
For the implementation of customs procedures, it is very important to accurately determine the HS code of the national commodity nomenclature of foreign economic affairs for specific goods.
If we know which commodity HS code a particular product is classified under, we can find the goods in the control list using the correlation table[80]:
[80] https://matsne.gov.ge/ka/document/view/2520245?publication=0
Example 1. Reservoir
If the goods to be exported are black metal tanks for liquids, with volume less than 100,000 liters, the tank will be classified within the HS code 7309 00 590 00.
In the search field of the correlation table (or in the filter of the first column), enter the HS code at the eleven-digit level 7309 00 590 00, exactly in the format given in the SES ESN, and find the corresponding entry:
#tableId {null margin: 0 auto !important; }#tableId {null margin: 0 auto !important; }#tableId {null margin: 0 auto !important; }#tableId {null margin: 0 auto !important; }#assignedTableId-1706693719564 {width: 465pt; margin-left: 5.65pt; border: none; margin: 0 auto !important; }7309 00 590 00
Reservoirs, tanks, vats and similar containers for any material (other than compressed or liquefied gas),of iron or steel, of a capacity exceeding 300 liters, whether or not lined or heat insulated, but not fitted with mechanical or thermal equipment.:– for liquids – of another capacity — — not exceeding 100 000 liters
2B350c
Chemical manufacturing facilities, equipment and components, as follows:
Storage tanks, containers or receivers with a total internal (geometric) volume more than 0,1 m 3 (100liters) where all surfaces that come in direct contact with the chemical(s)being processed or contained are made of any of the following materials:
1. Alloys with more than 25% of nickel and 20 % of chromium by weight;
2. Fluor polymers (polymeric or elastomeric materials with more than 35 % fluorine by weight);
3. Glass (including vitrified or enameled coatings or glass lining);
4. Nickel or alloys with more than40% of nickel by weight;
5. Tantalum or tantalum alloys;
6. Titanium or titanium alloys;
7. Zirconium or zirconium alloys; or
8. Niobium (columbium) or niobium alloys.
7309 00 590 00
Reservoirs, tanks, vats and similar containers for any material (other than compressed or liquefied gas),of iron or steel, of a capacity exceeding 300 liters, whether or not lined or heat insulated, but not fitted with mechanical or thermal equipment.:– for liquids – of another capacity — — not exceeding 100 000 liters
2B350a
Chemical manufacturing facilities,e quipment and components, as follows:
Reaction vessels or reactors, with or without agitators, with total internal (geometric) volume more than 0,1 m3 (100 liters) and less than 20 m 3 (20 000 liters), where all surfaces that come in direct contact with the chemical(s) being processed or contained are made from any of the following materials:
1. Alloys with more than 25% of nickel and 20% of chromium by weight;
2. Fluor polymers (polymeric or elastomeric materials with more than 35% of fluorine by weight);
3. Glass (including vitrified or enameled coating or glass lining);
4. Nickel or alloys with more than40% of nickel by weight;
5. Tantalum or tantalum alloys;
6. Titanium or titanium alloys;
7. Zirconium or zirconium alloys; or
8. Niobium (columbium) or niobiumalloys;
As a result, we see that all those products that are classified or can be classified by the declarant under the HS code 7309 00 590 00 are defined by points "a" and "c" of ECCN 2B350 as reactor vessels and tanks for the chemical industry
The next step is to check full information and explanations (Notes, Technical Notes and N.B) of points "a" and "c" of ECCN 2B350 on the control list (Appendix 2 of Ordinance No 394 of the government of Georgia of 13 June 2014) and start the process of identification.
Example 2: VALVE
The valves, with some exceptions, are classified under heading 8481, while the shut-off valves, except for cast iron and steel valves – are under the 8481 80 790 00 HS code.
In order to find our product in the correlation list, we have to write 8481 80 790 00 HS code in the search field of the table (or filter of the first column of the table) and look for the relevant entries:
#tableId {null margin: 0 auto !important; }#tableId {null margin: 0 auto !important; }#tableId {null margin: 0 auto !important; }#tableId {null margin: 0 auto !important; }#assignedTableId-1706693734438 {width: 485.75pt; border: none; margin: 0 auto !important; }8481 80 790 00
Taps, cocks, valves and similar appliances, for pipes, boiler shells, tanks, vats or the like, including pressure-reducing valves and thermostatically controlled valves:– other appliances:– – – – shut-off valves:— — — — — other
2A226
Valves having all of the following characteristics:
a. A nominal size of 5 mm or more;
b. Having a bellows seal; and
c. Wholly made of or lined with aluminum, aluminum alloy, nickel, or nickel alloy containing more than 60% of nickel by weight.
8481 80 790 00
Taps, cocks, valves and similar appliances, for pipes, boiler shells, tanks, vats or the like, including pressure-reducing valves and thermostatically controlled valves:– other appliances:– – – – shut-off valves:— — — — — other
0B001c
Plant for the separation of isotopes of natural uranium, depleted uranium or special fissile materials, and specially designed or prepared equipment and components therefor, as follows:
c. Equipment and components, specially designed or prepared for gaseous diffusion separation process, as follows:
6. Bellows-sealed valves, manual or automated, shut-off or control, made of or protected by materials resistant to corrosion by UF 6;
8481 80 790 00
Taps, cocks, valves and similar appliances, for pipes, boiler shells, tanks, vats or the like, including pressure-reducing valves and thermostatically controlled valves:– other appliances:– – – – shut-off valves:— — — — — other
2B350g
Chemical manufacturing facilities, equipment and components as follows:
1. Valves, having both of the following:
a. A nominal size more than 10 mm(3/8"); and
b. All surfaces that come indirect contact with the chemical(s) produced, processed, or contained are made of corrosion resistant materials;
2. Valves, other than those specified in 2B350.g.1., having all of the following:
a. A nominal size equal to or more than 25,4 mm (1") and equal to or less than 101,6 mm (4);
b. Casings (valve bodies) or preformed casing liners;
c. A closure element designed to be interchangeable; and
d. All surfaces of the casing(valve body) or preformed case liner that come in direct contact with the chemical(s) produced, processed, or contained and made of corrosion resistant materials;
3. Components, designed for valves specified in 2B350.g.1 or 2B350. g.2., in which all surfaces that come indirect contact with the chemical(s) produced, processed, or contained and made of corrosion resistant materials, as follows:
a. Casings (valve bodies);
b. Preformed casing liners;
8481 80 790 00
Taps, cocks, valves and similar appliances, for pipes, boiler shells, tanks, vats or the like, including pressure-reducing valves and thermostatically controlled valves:– other appliances:– – – –shut-off valves:— — — — — other
0B001d
Plant for the separation of isotopes of natural uranium, depleted uranium or special fissile materials, and specially designed or prepared equipment and components therefor, as follows:
d. Equipment and components, specially designed or prepared
for aerodynamic separation process, as follows:
6. Bellows-sealed valves, manual or automated, shut-off or control, made of or protected by materials resistant to corrosion by UF 6 with a diameter of 40 mm or more;
8481 80 790 00
Taps, cocks, valves and similar appliances, for pipes, boiler shells, tanks, vats or the like, including pressure-reducing valves and thermostatically controlled valves:– other appliances:– – – – shut-off valves:— — — — — other
7A116
Flight control systems and servo valves, as follows; designed or modified for use in space launched vehicles specified in 9A004 sounding rockets specified in 9A104 or missiles.
a. Pneumatic, hydraulic, mechanical, electro-optical, or electro-mechanical flight control systems(including fly-by-wire and fly-by-light systems);
b. Attitude control equipment;
c. Flight control servo valves designed or modified for the systems specified in 7A116.a. or 7A116.b., and designed or modified to operate in a vibration environment larger than 10 grms between 20 Hz and 2 kHz.
8481 80 790 00
Taps, cocks, valves and similar appliances, for pipes, boiler shells, tanks, vats or the like, including pressure-reducing valves and thermostatically controlled valves:– other appliances:– – – – shut-off valves:— — — — — other
9A106d
Systems or components, other than those specified in 9A006 as follows, specially designed for liquid rocket propulsion or gel propellant rocket systems:
d. Liquid, slurry and gel propellant (including oxidisers) control systems, and specially designed components therefor, usable in missiles, designed or modified to operate in vibration environments larger than 10 g rms between 20 Hz and 2 kHz.
The table shows all the types of valves included in the control list and the corresponding ECCNs, that are classified or may be classified by the declarant under the 8481 80 790 00 HS code
Since the National Commodity Nomenclature Codes (except the first six (or eight) digits of different countries) may differ from the National Commodity Nomenclature codes of Georgia, and in order to expedite the search scope and avoid errors in the search index, it is desirable to look for the products at the heading (first four digits) and subheading (first six digits) levels in the correlation table.
10.4. Use of open sources and use of special programs
The information needed to identify goods can be obtained from various sources and methods:
- Technical documentation (technical passport, MSDS, blueprints, charts, test protocols). The technical documentation must be perfect and the parameters in it are to be comparable with the characteristics of the same product in the control list;
- The manufacturer's website where the technical documentation, general descriptions of goods and the fields of use can be found (although here have been cases, when the manufacturer changed the information posted on the website, concealing the strategic importance of the product). Occasionally, enterprises place information on the compliance of their products with the control lists.[81]
[81] https://i.dell.com/sites/csdocuments/Legal_Docs/en/hts-eccn-ccats-2019-07.pdf
- Correspondence with manufacturers (the personal page of an enterprise often has the contact information and in practice we often ask about the parameters of particular items);
- Open sources (e.g. information provided by online stores about the goods, as well as identical and similar goods, information on metal alloys and chemical substances);
- The standards, which are applied when manufacturing the goods. Such standards are the International Standardization Organization Standards (ISO), CIS Regional (GOST), Germany (DIN), USA (ASTM) and other standards;
- Information on the product or packaging (e.g. stamps and marking, information boards on the devices, chemical composition of substances on the first or secondary packaging, etc.);
- The invoice (pro-forma invoice). Manufacturers often indicate in the invoice, which regulations are applied to particular goods. For example:
It should also be noted that introduction of such practices in all countries as well as the compliance of its products to the control lists and on the website, would somewhat simplify and facilitate the implementation of export control and customs procedures;
- Laboratory Research and Expertise - Accredited Laboratories and National Bureau of Experts operate in Georgia, enabling to draw certified conclusions on the technical parameters of some goods according to the legislation[82].
[82] http://gac.gov.ge/index.php?lang_id=GEO&sec_id=2,http://expertiza.gov.ge/page.html?page=acts&item=1081
Search engine for UN Security Council resolutions[83]
[83] http://unscr.com/
This is an unofficial free service designed for those who need to search for UN Security Council resolutions in their work, especially for politicans, specialists and researchers in the field of international law and international politics, as well as for customs officials who are directly related to their professional activities and play a special role in the implementation of the UN non-proliferation measures.
In the specified system, a search is possible by document number, document acceptance year, country and search word. For example, if we enter 2015 in the field «Year» and select the country «Iran» in the field «Topic», the system will display information about Resolution 2231 (2015) of the Security Council, related documents and full text[84].
[84] Important information for the implementation of UNSCR resolutions is given on the website: https://www.un.org/securitycouncil/content/un-sc-consolidated-list
Wisconsin Project on Nuclear Arms Control[85]
[85] https://www.un.org/securitycouncil/content/un-sc-consolidated-list
.It is a non-profit private organization that conducts research and public awareness to prevent the proliferation of nuclear, chemical and biological weapons and their means of delivery.
Iran Watch[86]
[86] http://www.iranwatch.org
Iran Watch is a website that investigates and publicizes Iran's missile and nuclear programs, organizations, individuals and legal entities involved in these programs, the so-called "suppliers", as well as international measures, which are directed against the progress of the mentioned program.
The Risk Report[87]
[87] http://www.riskreport.org
http://www.wisconsinproject.org/risk-report/
This is a database used to control the trade in strategic goods, which contains profiles of thousands of organizations involved in proliferation of WMD around the world.
The databases contain information on persons sanctioned by the US, UN, EU, and other countries, US export control regulations, EU control lists, guidelines for multilateral export control regimes, descriptions of goods controlled by these regimes, and analysis of various suspicious programs and additional reference materials.
Government officials from licensing authorities, customs, law enforcement, and intelligence services in approximately 40 countries around the world rely on risk report databases to make strategic decisions.
With the help of the US State Department, the officials of the Customs Service of Georgia have also received access to the mentioned databases, who are simultaneously sent email notifications from the program office about updating the account, imposing new financial and trade sanctions, and research.
EU Sanctions Map[88]
[88] https://www.sanctionsmap.eu/#/main
The EU sanctions map includes EU and UN sanctions, lists of sanctioned persons, sanctions information tools, websites of competent authorities, a and search engine for restrictive measures imposed on goods in accordance with the Commodity Code.
On the main page, the table contains a list of countries, the type of sanctions imposed on each country, the author and types of sanctions, lists of individuals and legal entities and organizations, legal acts, and guidelines.
Office of Foreign Assets Control (OFAC) sanctions search page (Sanctions List Search)[89]
[89] https://sanctionssearch.ofac.treas.gov/
This is a free tool created by OFAC to help the public side comply with the sanctions program rules. It is intended for individual users seeking potential compliance with OFAC's sanctions lists.
Definition of Internal Compliance Program (ICP)
International experience shows that an efficient national export control system can be implemented only by joint efforts of the state and business society.
The role of the state in the area of control over the circulation of strategic goods is to develop an efficient export control policy and to meet obligations under non-proliferation regimes, which is reflected in the implementation and observance of international agreements and treaties.
The duty of the industry is to pursue the state export control policy. In order to ensure that companies are able to comply with the requirements of national legislation and export control rules regarding the non-proliferation of WMD, it is desirable that they develop and implement so-called internal compliance systems (internal control system, internal compliance program).
The following obligations of the permit holder are specified in Paragraph 3 of Article 14 of the law of Georgia on control of military and dual-use items:
The permit holder shall comply with the permit conditions set forth in the Georgian legislation by:
a) Immediately informing the licensing authority on any changes made to the documents submitted for obtaining the permit;
b) Putting in place an internal control system that ensures compliance with the conditions of the permit;
c) Maintaining an information database that will allow to immediately report on the fulfillment of the permit conditions upon the request of the licensing authority;
d) Facilitating control measures for the licensing authority as set forth by the legislation of Georgia.
Precise explanation of the rules for creating and operating the internal compliance system is not determined by the legislation of Georgia. Therefore, the following explanations and recommendations will do companies good service in developing and implementing their own internal compliance systems.
The Internal Compliance Program (ICP) is a kind of agreement whereby companies guarantee that they will only make legal transactions and observe the regulations adopted by the state and the export policy declared by the company.
The ICP includes a set of procedures and measures to be taken by an organization to ensure compliance with export control rules. Authorized employees must follow the rules before sending goods to another country (for example, screening of the buyer and end-user of the product etc.)
There are many models of ICPs. One of the most efficient systems has been developed by the German company Leybold in the early 1990s. This was the period when the German government began to reassess the existing export control system, and ICP created by Leybold is the best example of how the company is responsible for protecting Germany's strict export control requirements, often even at the expense of rejecting profitable transactions.
ICP system should include the following main activities:
- Establishment of regular contacts and cooperation with agencies/authorities issuing exporting licenses/permits;
- Continuous receipt of information on changes and updates made to legislative and sub-legal regulations governing export control;
- Centralization of export-related issues and problems;
- Standardization of procedures;
- Provision of advance notice and verification of all orders and requests;
- Creation of a package of consistent and comprehensive documentation on all sensitive export operations; and
- Organization of training for all employees who are directly or indirectly involved in export control.
One of the main objectives of the ICP is to select a partner correctly and prevent suspicious transactions with suspicious companies. For this purpose, it is first and foremost necessary to "familiarize with" and carefully study the buyers of sensitive products. To analyze each potential transaction, the company may use a questionnaire, which may contain the following items to select a partner:
- How transparent is the identity of the buyers or end-users?
- Is there a mediator?
- Are client data included in the list of persons sanctioned by the UN Security Council or the Government and involved in the illegal trade in strategic goods or in a nuclear program of any country?
- Does the client want or not or does he/she intend or not to provide information on the final use of the products to be reviewed;
- Whether the specific products are relevant to the scope of the buyer's business;
- Is the product consistent with the technical development of the destination country?
- What are the types of payment: Is the buyer willing to pay a large amount in cash, and does this correspond to his/her financial capabilities? Or does he/she offer an unusually profitable conditions to the vendor?
- What is the buyer's business experience (for example, company history)?
- Does the client know what products he wants to buy, its parameters and capabilities?
- Is the product related to the military industry?
- Does the client avoid or vaguely answer the question on whether the product is intended for internal use, export or re-export?
- Have nonproliferation obligations of recipient countries been verified?
- Was it emphasized that products are subject to permit control or intended for military purposes?
- Is the shipping company listed as a recipient or end-user?
- Is the supply chain suspicious?
- Does the buyer require unusual or inappropriate labeling or overloading?
- Does the customer refuse to cooperate (no fixtures, no instructions, no maintenance etc.).
To successfully implement an ECP, internal export control hierarchy needs to first and foremost be created. A group of export control officers must be formed or an authorized employee must be designated (according to the scope of the company or enterprise) with functions that include:
- Evaluation of each specific trade operation (goods, technology, software) so that the export is fully compliant with export control legislation;
- Product identification against control lists;
- Collaboration with government authorities responsible for issuance of permits and enforcement;
- Legal consulting;
- Personnel training or organization of trainings, etc.
In addition,- A senior official of a company, such as the chief executive officer or president/DG, should always act as an export control officer and be responsible for all export operations;
- None of the products should be sent from the company until all internal compliance procedures are completed with duly signed documents and a permit issued by the state body;
- All employees of the company should be informed on their obligation to pursue the export policy established by the organization. An opinion of each employee and analysis of export operations is of great importance for decision-making on transactions;
- Company employees must regularly attend courses and seminars, and also study not only export control rules, but also technical aspects of the product and its strategic use, the risk of misusing these products, identifying illegal and suspicious transactions, etc.;
- In addition, employees should be well aware of the fact that any misconduct and personal negligence are punishable, and they will be charged for violating these rules;
- The unit/division/department responsible for export control should have constant communication with officials of the relevant state bodies in order to always be informed of any amendments;
- Assessment of the company's internal compliance program should regularly be carried out in order to ensure compliance with policy procedures and high standards;
- If the company has problems with the implementation of the export control policy, it should contact the state export control authorities or other companies to exchange experience;
- A company must create its own internal database about prohibited persons, companies and countries. These databases should include any country and international lists. In addition, the Company must ensure that it does not violate any rules, conventions, treaties or requirements of international organizations regarding the non-proliferation of WMD. To this end, the company must develop a database on the international legal framework governing international trade in dual-use goods.
An internal compliance system should develop procedures for continuous innovations and improvement. The system must be constantly updated and adapted in accordance with government legislation and changes in the company's policy. Unfortunately, despite the existence of a databases of suspicious companies and illegal transactions, as well as numerous databases that support the identification of strategic goods, the private sector and government agencies often do not have access to such databases.
Market Analysis and Industry Mapping
After independence, Georgia found itself on a very difficult path of state formation. This was a period of intense internal or external processes that had a negative impact on the development of the country's economy. The country's enterprises have almost disappeared, the scientific sphere and the education system were in poor condition, and the country became almost completely dependent on imports.
At present, compared to the agricultural sector, Georgia is currently developing at a slow pace in the fields of mechanical engineering, chemical industry and other fields of science and research.
Therefore, it should be noted that there are only a few enterprises in the country that produce (and/or trade) strategic goods or whose activities are related to dual-use items and technologies, and that the turnover of dual-use items is low compared to developed countries.
The quantitative statistics on permits issued by the Revenue Service over the past three years looks like as follows:
#tableId {null margin: 0 auto !important; }#tableId {null margin: 0 auto !important; }#tableId {null margin: 0 auto !important; }#tableId {null margin: 0 auto !important; }#assignedTableId-1706694027070 {width: 452.45pt; margin-left: -0.25pt; margin: 0 auto !important; }Type of the permit
Quantity of permits issued in 2020-2023
2020
2021
2022
Q2 2023
Export permit on DUG
141
139
135
112
Import permit on DUG
21
7
4
4
Transit permit on DUG
4
6
14
8
Permit on brokering service
0
0
0
0
Permit of technical assistance
0
0
0
0
TOTAL:
166
152
153
124
The major number of permits is issued on the:
Export of sodium cyanide
Export of explosive substances, electric detonators, detonating cords
Export of boron carbide enriched by boron-10, boric acid
Export of network devices
Import of explosive substances, electric detonators, detonating cords
Transit of natural uranium concentrate
You can find information about Georgian companies whose activities are related to dual-use products / technologies at the following websites:
GEONITRO LTD
http://www.geo-nitro.ge/en/
RUSTAVIS AZOTI LLC
https://rustaviazot.ge/
NATIONAL CENTER OF HIGH TECHNOLOGIES
http://www.geoisotopes.com/ka/bori-ge
RMG GOLD LLC
http://www.richmetalsgroup.com/
NITRO ALTEX LLC
http://nitroaltex.ge/ka/chven-shesakheb
AERO STRUCTURE TECHNOLOGIES CYCLONE JSC
http://www.atccomposite.com/
RICHARD LUGAR RESEARCH CENTER FOR PUBLIC HEALTH http://ncdc.ge/Pages/User/LetterContent.aspx?ID=2fd8140d-956a-45a0-bc6c-63f9fdd63346
STATE MILITARY SCIENTIFIC-TECHNICAL CENTER “DELTA”
http://www.delta.gov.ge/
ERC-DISTRIBUTION GEORGIA
https://erc-distribution.com/
At the same time, Georgia’s scientific and research institutes are capable of working in a number of sensitive technology areas that may be subject to controls. For example, Georgia’s active biotechnology community should be aware of the laws that might govern their work with international partners.
These communities and institutions are systematically improving technical bases, introducing new technologies, expanding production and establishing themselves on the international market.
Section 11. Case Studies
Fast Reacting Ion-Exchange Resins
HS codes: 3914 00 000 00
3824 99 150 00
Equipment and components, specially designed or prepared for ion-exchange separation process, as follows:
0B001.f Fast reacting ion-exchange resins, pellicular or porous macro-reticulated resins in which the active chemical exchange groups are limited to a coating on the surface of an inactive porous support structure, and other composite structures in any suitable form, including particles or fibres, with diameters of 0,2 mm or less, resistant to concentrated hydrochloric acid and designed to have an exchange rate half-time of less than 10 s and capable of operating at temperatures in the range of 373 K (100Co) to 473 K (200Co);
Ion exchange resin or ion exchange polymer is the resin or polymer that creates an environment for the ion exchange process. It is an insoluble (stable) matrix, usually in the form of white or yellow microspheres about 0.005 - 1.43 mm in size, made from an organic polymer substrate (however, the ion exchange resin may be in the form of particles, fibers or a membrane with an irregular surface).
Spherules are usually porous, so they have a large surface area. Ions are captured on the surface of the spherules and inside it, at the expense of the release of other ions, which is why this process is called ion exchange. The ion exchange process is also called ion chromatography, and ion exchange resins are often referred to as chromatography resins. There are several types of ion exchange resins. Most commercial resins are made from polystyrene sulfonate.
Ion exchange resins are used:
To soften hard water by replacing magnesium and calcium ions with sodium ions; filter water, in particular, remove ions of toxic and hazardous metals (copper, lead, cadmium), replacing them with safer sodium and potassium ions; in the production of fruit juices, remove bitter taste components, which makes it possible to make juices from less tasty fruits; in sugar production for decolorization and clarification of sugar syrups; in the production of pharmaceuticals and medicines, etc.
Ion exchange processes are used to separate and purify metals, including the separation of uranium from plutonium and other actinides, including thorium.
One example of such processes is the so-called PUREX (plutonium-uranium recovery process). This is a process in which plutonium and uranium are separated from spent nuclear reactor fuel elements and waste is removed, after which the plutonium and uranium are suitable for the production of nuclear energy materials such as fuel for reactors and nuclear weapons.
Ion exchange resins are also an important component of underground uranium mining. Uranium-containing water with a U3O8 content of 0.05% is taken from the well, which is filtered through an ion-exchange resin.
During the ion exchange process, the resin spherules attract uranium ions from the solution.
Next, the uranium-containing resin is transported to a processing plant, where U3O8 is separated from the resin beads and a yellow powder of uranium concentrate is obtained.
One of the main strategic purposes of ion exchange resins is the use of uranium enrichment in the ion exchange process.
Enrichment of uranium in the ion-exchange process is achieved by adsorption/desorption of uranium on a special highly reactive resin or adsorbent. A solution of uranium and hydrochloric acid and other chemical reagents are passed through cylindrical enrichment columns containing dense layers of adsorbent.
Accordingly, the main characteristics of the resins intended for the ion exchange process of uranium enrichment are high chemical exchange rate (1000 times higher than the exchange rate of commercially available resins), stability to a certain temperature (100°C-200°C) and pressure, resistance to high acidity, property, withstand repeated processing and uniform particle size (less than 0.2 mm).
Atomic grade resin spherules are exceptionally strong and pure, with a minimum content of metals, chlorides and organic impurities.
Ion exchange resin is a safe material and is not hazardous to health prior to use. When in contact with solutions, the resins become impregnated with the chemicals present in the solution, which can cause skin damage upon contact.
Ion exchange resins are transported in small packages of up to 1 kg. High quality products are sealed in glass bottles and shipped in hard cardboard boxes.
Moist resin can be placed in polyethylene bags. Packages are placed in dense cardboard cylinders, closed and affixed with the appropriate label. The drums, which usually contain about 0.2 m3 (160 kg) of resin, are mounted on a wooden stand.
The photo shows the yellow powder of uranium concentrate obtained as a result of the ion exchange process.
As we have already mentioned, ion exchange resins are widely used for water filtration and softening, in medicine, for the separation of chemical mixtures and compounds, in the biodiesel filtration process, etc.
All of the above processes use ion exchange resins of appropriate quality and parameters, and it is very rare to find resins with parameters defined by the control list.
Companies producing ion exchange resins must indicate in the technical documentation the industry or technological process for which ion exchange resin of a specific quality/name/brand is intended.
The technical documentation also indicates the type of product, particle size, temperature range, acid resistance, composition, etc., which are the necessary parameters for documentary identification.
e.g. Purolite NRW5010 Ion Exchange Resin manufactured by Purolite, on the data sheet indicates that the product is nuclear grade.
Metal Powders
1C111 Rocket propellants and propellant chemicals, other than those specified in 1C011, as follows:
a. Propelling substances:
1. Spherical or spheroidal aluminum powder in particle size of less than 200 µm and aluminum content of 97% by weight or more, if at least 10% of the total weight is made up of particles of less than 63 µm, according to ISO 2591- 1:1988 or national equivalents; Technical Note: A particle size of 63 µm (ISO R-565) corresponds to 250 mesh (Tyler) or 230 mesh (ASTM standard E-11).
2. Metal powders, other than those specified in the military items control list, spherical, pulverized, spheroidal, flake, or precipitated, with a particle size of less than 60 µm, consisting of 97% or more by weight of any of the following:
a. zirconium;
b. beryllium;
c. magnesium; or
d. Alloys of the metals specified in a to c above.
b. Boron with a purity of 85% or higher or metallic powders of boron alloys with a purity of 85% or higher, if not less than 90% of the total number of particles has a particle size of 60 µm or less;
1. Boron of 85% or higher purity by weight;
2. Boron alloys with a boron content of 85% or more by weight.
Metal Powders
ECCNs 1C011, 1C111
Spherical and spheroidal aluminum powder (CAS 7429-90-5) HS 7603 10;
Zirconium (CAS 7440-67-7) powder HS 8109 21, 8109 29;
Beryllium (CAS 7440-41-7) powder HS 8112 12, 8112 13;
Magnesium powder (CAS 7440-41-7) (HS 8104 11, 8104 19, 8104 30);
Metallic powder of boron (CAS 7440-42-8) and boron alloys (HS 2804 50 100 00, 2849 90 100 00);
Applications: Aluminum, beryllium, boron, magnesium and zirconium powders with a particle size of 60 x 10–6 m (60 microns) are used to improve the properties of solid and liquid rocket propellants. For example, aluminum powder, as an additive, makes up 5-20% of the mass of solid fuel. The combustion of aluminum raises the combustion temperature of such fuel to 800 °K (527 °C) and increases the specific impulse by as much as 10%.
Metal powders are added either to solid propellants in the manufacture of rocket engines or to liquid propellants to form a suspension for rocket engines.
Because the surface area to volume ratio of such small particles is very high/large, the oxidizing agent surrounds and quickly burns each metal particle, releasing a large amount of energy per unit weight at very high temperatures.
Aluminum powder is relatively inexpensive and is used more often than other metals as a component in solid-fuel and liquid-fuel rocket engines to increase propellant momentum and stabilize combustion.
Beryllium, boron, magnesium, and zirconium powders are much more expensive, dangerous, and difficult to handle, which is why they are rarely used in practice.
The aluminum powder as the main ingredient is also used in aerosol paints. Spherical aluminum is used as a catalyst, as a component for turbine surfacing materials, as a raw material for additive (3D) manufacturing machines, etc.
Externally, factory-made aluminum powder is a gray or light silver powder. Rocket-grade particles range in size from 3 to 100 microns, although there are cases of using powder with larger particles. The shape of the particle is spherical or spheroidal. Beryllium, magnesium and zirconium powders are also gray or light silver. Boron powder is dark brown, and the color of the suspension depends on the liquid in which the powder is mixed.
For example, boron mixed with dicyclopentadiene is a potential fuel for ramjet-type aircraft engines and produces a brownish-chocolate suspension of honey consistency rocket fuel, i.e. like the RP-1 and JP-10, they are similar in appearance.
When shipped, aluminum powder is typically packaged in steel drums of 30 gallons (114 L) or less. The weight of one such drum is approximately 180 kg. Other metal powders will be transported with a similar type of container.
Additional information: The density of aluminum is 2.7 g/cm3, but the bulk density is somewhat lower and depends on the particle size.
Beryllium and its combustion products are very toxic. Boron is hardly flammable. Zirconium powder is very dangerous to handle as it is self-igniting when exposed to air, so it is shipped in mixture with water[90].
[90] https://mtcr.info/wordpress/wp-content/uploads/2017/10/MTCR-Handbook-2017-INDEXED-FINAL-Digital.pdf
As specified in 1C111.a.1, dual-use products include spherical or spheroidal aluminum powders, other than those specified in the military items control list, with uniform particles less than 200 µm in diameter and containing 97% or more aluminum by weight, provided that at least 10% of the total weight contains particles smaller than 63 µm (250 mesh (Tyler)/230 mesh (ASTM standard E-11)), according to ISO 2591:1988 or national equivalents;
The Military items List controls spherical aluminum powder (CAS 7429-90-5), with a particle size of 60 µm or less, made from a material containing 99% or more aluminum.
In both cases, the key characteristics of strategic aluminum powder are uniform particle size (<60/200 μm), the spherical shape of the particle, and high content of aluminum in the alloy (>97/99%), however, these parameters are not important for the manufacture of improvised explosive devices.
Information about the mentioned parameters is usually indicated in the documentation issued by the manufacturer (material safety data sheet (MSDS), technical passport) and on the manufacturer's website, quality certificate, expert/laboratory/granulometric analysis, often in the customs declaration, invoice, packaging, etc.
For example, in the safety data sheets for aluminum powder produced by the “American ELEMENTS” company, we can find all the parameters necessary for product identification, in particular: aluminum content 99.99%, particle shape spherical, and average particle size 18 nm.
According to this characteristic, this aluminum powder is classified as a military item and requires a permit for transit, import and export[91].
[91] https://www.americanelements.com/aluminum-nanoparticles-7429-90-5
Aluminum powders: ПА-1, ПА-2, ПА-3, ПА-4 are produced in CIS countries. IAccording to the manufacturers documentation, the powders comply with the ГОСТ 6058-73- standard, according to which the powders of this brand are intended for use in pyrotechnics, ferrous metallurgy, chemical industry, welding of metals, etc., the particles are not spherical in shape; particle sizes are heterogeneous and vary in the range of 0.02-2000 microns, and the average size is 66-100 microns; Aluminum content is not less than 98-99%.
Materials used in the manufacture of equipment and installations resistant to corrosive chemicals
The equipment defined by the ECCN 2B350 of the control list is an essential attribute for the chemical, oil refining, pharmaceutical, food and other industries, in agriculture and domestic consumption, and, therefore, the share of this and similar equipment in the total cargo turnover is quite large.
However, this does not mean that all reactors, tanks, pumps, fittings, etc. correspond to the parameters set by the control list and are subject to permit control.
In order to clearly understand what types of equipment are assigned a strategic purpose, let's first consider the materials specified in the characteristics of equipment classified in 2B350
Since most of the toxic chemicals and their precursors are highly corrosive, equipment, machinery and their components used in the chemical weapons development cycle must be made of corrosion-resistant materials.
Accordingly, corrosion resistance is one of the main characteristic parameters for chemical production equipment subject to export controls.
For example, equipment and components for the chemical industry classified under ECCN 2B350 of the control list require all surfaces that come into direct contact with processed or stored chemicals to be made or coated with: high nickel and chromium alloys, fluoropolymers with high fluorine composition, glass, tantalum, titanium, zirconium, niobium (columbium) or "alloys" of these metals.
As a rule, there are several international identifiers for alloys (Unified Numbering System for commercial materials (UNS), International Standardization System (ISO), ASTM, DIN, ГОСТ, etc.), among which there is some correspondence.
Numbers that comply with UNS, ISO, ASTM, DIN, GOST and other standards are used to describe goods in technical passports, customs declarations, invoices, expert opinions, certificates and other documents, which is important and necessary information for documentary identification of goods.
Often, an identification number defined by one of the above standards is applied to a product or device, and from such lebelling it is possible to determine the chemical and physical characteristics of the material from which the item is made.
e.g. The UNS number consists of one letter and five numeric characters, where the Latin letter denotes the type of alloy/metal and the range of numbers is associated with the base metal of the alloy.
e.g. The UNS number N10276, (referring to a metal containing 51% nickel, 14.5-16.5% chromium, and 16% molybdenum), indicates that it is a nickel alloy and contains more nickel than any other metal. Trade names of such metal are Hastelloy C-276, Inconel alloy C-276, Nickelvac 276, AL 276.
For the equipment and accessories for the chemical industry of strategic purpose (chemical reactors, mixers, storage tanks, valves, pumps, etc.), the list specifies two types of high-nickel alloys:
Alloys containing more than 25% nickel and more than 20% chromium by weight; and nickel or alloys containing more than 40% nickel by weight.
Many different alloys meet these criteria, including alloys under the following trade names: Hastelloy®, Inconel®, Incoloy®, Monel® and Nickelvac®. But, it should be noted that not all alloys of this designation always correspond to the parameters given in the control list, and in order to determine the exact composition of the metal, it is necessary to find the manufacturer's information.
The table gives examples of alloys with a high mass percentage of nickel and nickel-chromium, according to the International Unified Numbering System (UNS) for alloys:
Tantalum, titanium, zirconium and niobium are known as "reactive metals" - metals that react with oxygen. As a result, a protective, corrosion-resistant oxide layer is formed on their surface.
These materials are often referred to as "exotic metals".
Alloys of these metals are controlled by the latest technical note to 2B350:
For the materials listed in the above paragraphs, the term "alloys", when no specific concentration of elements is indicated, means alloys of that metal which is present in the alloy in a higher percentage by weight than any other element.
That is, since for alloys of tantalum, titanium, zirconium and niobium the concentration limit of elements has not been established, any alloy in which the proportion of these metals is greater than the proportion of all other metals is subject to control.
Titanium alloys are often denoted by the chemical symbol Ti in the name of the alloy. There are several grades of "commercially pure" titanium, often designated by a grade number (for example, Ti Grade # or simply Grade #) and titanium alloys. The most common form of titanium is Grade2).
Due to its resistance to aggressive chemicals, titanium devices are widely used in power plants, chemical plants, oil refineries, filtration plants, liquefied gas plants, offshore platforms, etc.
Titanium alloys are resistant to substances such as salt, phosphorus, nitrogen, sulfuric and organic acids, bleaches, chlorine, alkali solutions, chlorine dioxide, hydrogen sulfide, inorganic salts, fresh and sea water.
In the Unified Numbering System (USN), titanium alloys are designated in the range R50001–R59999.
Tantalum -the corrosion resistance of is often compared to glass. Like other reactive metals, tantalum exhibits high corrosion resistance to acids.Tantalum is used in devices that come into contact with salt, phosphorus, nitrogen, sulfur and other strong organic acids, as well as bromine and pharmaceuticals.
Heat exchangers, condensers, chemical tanks, columns, valve covers and other equipment are made from tantalum.
In the Unified Numbering System (UNS), the range R05001–R05999 is allocated to the designation numbers for tantalum alloys.
The chemical symbol for tantalum is Ta, which may appear in the names of tantalum alloys. e.g. Tantalum 2.5% Tungsten (97.5Ta-2.5W; Ta2.5W; Tantalum-Tungsten 2.5%; KBI-6®); Tantalum 10% Tungsten (90Ta-10W; Ta10W; KBI-10®); and Tantalum 40% Niobium (60Ta-40Nb; Ta40Nb; KBI-40®). All three types of alloys are used as structural materials for manufacturing various types of chemical technological equipment.
Zirconium -is one of the most corrosion-resistant metals against organic and inorganic acids, alkaline substances, hydrogen peroxide and many other substances. It is widely used both in the chemical industry and in nuclear reactors and nuclear fuel production processes.
In the Unified Numbering System (UNS), zirconium alloys are assigned designations in the range R60001–R69999. The chemical symbol for zirconium, Zr, often appears in alloy names and is an indicator of the presence of zirconium as the base metal in the alloy.
For example, zirconium alloys most commonly used in the chemical industry are ASTM Zr702, Zr704, Zr705, and Zr706. Zircadyne® is the trade name for certain zirconium alloys (eg Zircadyne®702, Zircadyne®705) used in chemical plants.
Niobium (Columbium) is mainly used in the aerospace, nuclear and superconducting industries, but it can be used to make chemical industry capacitors, heat exchangers, valve covers, etc.
In the Unified Numbering System (UNS), niobium alloys correspond to designations in the range R04001–R04999. The chemical symbol of niobium Nb and/or the archaic name columbium (Cb) can be found in the names of alloys, e.g. niobium alloy with 1% zirconium content, denoted by symbols: Nb-1Zr, Nb-Zirc, Niobium-Zirc, Niobium Zirconium, Niobium-1 Zirconium , NB-1%Zr, Niobium 1% Zirc, or Nb1Zr), C-103, C-129Y, Cb-752, C-3009; Niobium alloy with 7.5% tantalum - Nb7.5 Ta®, and niobium alloy with 47% titanium - Nb47Ti®.
Ferrosilicon-is a type of iron alloy, in which the silicon content is much higher (15–90%) than in cast iron. Ferrosilicon is available under the following trade names: Duriron™, Durichlor™, Superchlor™ and Siguss®. Ferrosilicon is highly resistant to sulfuric acid, which leads to its use in devices related to the production of sulfuric acid.
Ferrosilicon also exhibits resistance to the corrosive properties of nitric acid, hydrochloric acid and other aggressive substances.
Alloys with a high content of ferrosilicon are widely used in the oil refining industry, in the production of sulfuric and nitric acids, in the processing of metals, in the production of explosives, paints, fertilizers, etc.
In the control list, ferrosilicon as a material of construction from chemical industry equipment is provided only for pumps specified in the ECCN 2B350.i.3.
Fluoropolymers- are fluorine-containing polymeric or elastomeric materials with high corrosion resistance.
Fluoroplasts- are relatively high molecular mass forming polymers in which some or all of the hydrogen atoms are replaced by fluorine atoms. Fluoroplasts look very similar to other plastics and can be found in different colors.
Fluoroelastomers -are fluorinated synthetic rubbers that are often used to make gaskets.
Fluoropolymers are used in the food industry, pharmaceutical production, metallurgy, etc.
More commonly, fluoropolymers are referred to by their trade names or abbreviations, rather than their long scientific names.
In the control list, fluoropolymers are specified as a material of construction for all chemical equipment specified in 2B350.
For use in these equipment, fluoropolymers (polymeric or elastomeric materials) with more than 35% fluorine by weight are preferred.
The table lists some relatively common fluoropolymers with their abbreviation, technical name, trade name, and percentage of fluorine.
Glass (Vitreous enamel or enamel) is used in chemical reactors, storage tanks, distillation columns, heat exchangers, pumps, etc. for surface finishing.
Vitreous enamel can be applied to many types of metals (eg stainless steel, aluminium, copper, cast iron, etc.) and is usually blue in color.
Vitreous enamel has many properties, incl. It is smooth, inert, corrosion resistant, easy to clean, non-flammable, etc., so it is widely used in the chemical industry.
Ceramics as a structural material is listed in the specifications of heat exchangers and condensers, valves, pumps, waste recycling furnaces.
Such ceramic material can be silicon carbide (chemical designation - SiC; one of the trade names - Hexoloy®), titanium carbide (TiC), aluminum oxide (Al2O3), zirconium oxide (ZrO2) and others.
Valves
HS Heading 8481
Valves with ‘nominal sizes’ greater than 10 mm and casings (valve bodies) or preformed casing liners designed for such valves, in which all surfaces that come in direct contact with the chemical(s) being processed or contained are made from any of the following materials:
1. ‘Alloys’ with more than 25 % nickel and 20 % chromium by weight;
2. Fluoropolymers (polymeric or elastomeric materials with more than 35 % fluorine by weight);
3. Glass (including vitrified or enameled coatings or glass lining);
4. Nickel or ‘alloys’ with more than 40 % nickel by weight;
5. Tantalum or tantalum ‘alloys’;
6. Titanium or titanium ‘alloys’;
7. Zirconium or zirconium ‘alloys’;
8. Niobium (columbium) or niobium ‘alloys’; or
9. Ceramic materials as follows:
a. Silicon carbide with a purity of 80 % or more by weight;
b. Aluminium oxide (alumina) with a purity of 99,9 % or more by weight;
c. Zirconium oxide (zirconia);
2B350.g –Valves
Valves are used to control fluid flow. In practice, there are many valve configurations that differ from each other in the materials and type of construction, the number of ports, the type of connecting ends, the shape of the body, and the type of closing/opening mechanism.
Accordingly, the name of the valves corresponds to their design features and functions, such as check valves, ball valves, regulating valves, disc valves, butterfly valves, plug valves, bellows valves, diaphragm/diaphragm valves, etc.
For the purposes of 2B350.g, the strategic purpose of a valve does not depend on its design and is determined by the size of the valve, the materials from which the contact surface with the gas or liquid is made, and the possibility of interchangeability of the locking elements of the construction.
In view of the above, the 2B350.g includes a diverse set of valves.
Valves are characterized by two or more connections (ports) and opening and closing mechanisms.
Couplings may have flanges, screws, or a combination of them to seal pipes.
Valves can be controlled (open/closed) mechanically, by an operator, or automatically;
The valve may be actuated by an electric, pneumatic, hydraulic or manual actuator.
The photos show valves of various constructions, functions, automatic and manual controls, coated with various corrosion-resistant alloys and fluoropolymers, used in the chemical industry.
The valve body is often engraved or labelled containing the manufacturer's name, model number of the valve or part, material grade, etc. This information is very useful for finding and/or identifying additional information about the valve.
It is considered strategic if:
Valves with a 'nominal size' greater than 10 mm (DN 10 or NPS 3/8) if the wettable surface of its body is lined or made with materials specified in 2B350.g; and
Valves, 25 mm to 100 mm 'nominal size' (DN25/ NPS1 to DN 100/NPS4) having interchangeable shut-off elements (eg balls, plugs, diaphragms/diaphragms, discs, etc.) provided, that the wettable surface of their hulls is made of the materials specified in 2B350.g.
Thus, a ball valve, NPS 5 (≈DN125), whose inside diameter body is lined with a fluoropolymer and the ball is made of carbon steel and is replaceable, is subject to control.
When shipped, small valves are usually boxed (one valve per box) and often wrapped in plastic. Cushioning can be provided in the box. Oversized valves can be packaged in a box or mounted on a stand/pad. In this case, the ports should probably be sealed to prevent clogging of the valve.
Strategic purpose valves are mainly used in the chemical industry, e.g. in the Chloralkali process, in the petrochemical industry, in the production of agrochemicals, cellulose-paper and pharmaceutical products, in energy sector, etc.
In addition to the above:
ECCN 0B001 of the control list regulates bellow-sealed valves for nuclear enrichment processes which should be made of materials resistant to uranium fluoride corrosion (copper, stainless steel, aluminium, alumina, aluminum alloys, nickel, or alloys containing 60% or more nickel and UF6 , resistant to fluorinated hydrocarbon polymers) and should have a diameter of 10-160 mm or 40-1500 mm; but
ECCN 2A226 controls valves with a nominal size (smallest diameter for valves with different inlet or outlet sizes) of 5 mm and larger and made of aluminum, aluminum alloys, nickel, or alloys containing 60% or more nickel.
ECCN 7A116 controls servo valves for space launch vehicles, space probes, or rockets. The use of such valves is of paramount importance for the control of such powerful systems as advanced liquid-propellant rocket engines. Servo valves are complex electromechanical devices that control the fuel supply in rocket engines.
Storage Tanks, Containers or Receivers for Chemical Substances
Storage tanks, containers or receivers with a total internal (geometric) volume greater than 0,1 m3 (100 litres) where all surfaces that come in direct contact with the chemical(s) being processed or contained are made from any of the following materials:
1. ‘Alloys’ with more than 25 % nickel and 20 % chromium by weight;
2. Fluoropolymers (polymeric or elastomeric materials with more than 35 % fluorine by weight);
3. Glass (including vitrified or enamelled coatings or glass lining);
4. Nickel or ‘alloys’ with more than 40 % nickel by weight;
5. Tantalum or tantalum ‘alloys’;
6. Titanium or titanium ‘alloys’;
7. Zirconium or zirconium ‘alloys’; or
8. Niobium (columbium) or niobium ‘alloys’;
For example, consider the production tank of the company Albrigi Technologies under the trademark - ENOTANK, which is designed for the production of wine.
Let's compare the parameters given in 2B350.c with the characteristics of ENOTANK:
The capacity of ENOTANK is 300 liters, the inner surface is mirror-coated and is not glazed or covered with any other coating.
The material with which ENOTANK is made is AISI 304/L grade alloy with chemical content:
#tableId {null margin: 0 auto !important; }#tableId {null margin: 0 auto !important; }#tableId {null margin: 0 auto !important; }#tableId {null margin: 0 auto !important; }#assignedTableId-1706694590990 {null margin: 0 auto !important; }alloy
C
Si
Mn
P≤
S≤
Cr
Mo
Ni
Other
304L
≤0.03
≤0.75
≤2.00
0.045
0.03
18-20
-
8-12
According to 2B350.c.1, for the tank to be controlled, the alloy it is made of must contain more than 25% nickel and more than 20% chromium.
Alloy AISI 304/L contains 18-20% chromium and 8-12% nickel.
Thus, the ENOTANK tank is not a dual-use item.
Ball bearings
ECCNs: 2A001, 2A101
HS Code: 8482101000, 8482109000, 8482800000
2A101 Radial ball bearings, other than those specified in 2A001, with all tolerances conforming to ISO 492, tolerance class 2 (or ANSI/ABMA STD 20, tolerance class ABEC-9 or other national equivalents), or better, having all of the following characteristics:
a. An Inner ring diameter from 12 mm to 50 mm;
b. An outer ring outside diameter between 25 and 100 mm
c. Width between 10 and 20 mm.
Applications: High-quality radial ball bearings are an important and necessary part of aerospace equipment, used in all types of aircraft aero-gas turbine engines and rocket engine pumps.
Ball bearings are used in almost all types of machinery: automobiles, machine tools, pumps, agricultural and medical machinery and equipment, etc. ;
Through the bearing, the rotating axis of the vehicle moves silently and smoothly and experiences minimal wear;
The bearing has outer and inner rings, between which balls are placed. Typically, one of the rings remains stationary while the other ring rotates through the balls;
During operation, radial ball bearings are subjected to radial, axial, momentary, reverse-axial, or combined loads.
Due to the wide range of applications, there are frequent cases of radial ball bearings of various types moving at the border, but bearings are considered strategic if they comply with the tolerance classes and dimensions established by the specified standards.
ISO 492 tolerance class 2 and ANSI/ABMA STD 20 tolerance class ABEC-9 mean the highest manufacturing quality of precision bearings.
Correspondence of tolerance classes according to different standards is given in the table[92]:
[92] https://www.astbearings.com/bearing-tolerances-precision-levels.html
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ISO 492
DIN 620
JIS B1514
ABEC 1
normal
class 6X
P0
Class 0
ABEC 3
class 6
P6
Class 6
ABEC 5
class 5
P5
Class 5
ABEC 7
class 4
P4
Class 4
ABEC 9
class 2
P2
Class 2
An inscription indicating the tolerance class is located on the bearing, transport/customs documents, packaging, etc., which makes it easier for us to identify this type of goods. for example
Strategic-purpose radial ball bearings are generally shipped in medium-sized cartons and do not require any type of special packaging for shipping.
Ball bearings are also controlled by the five-digit alphanumeric code 2A001 of the dual-use items control list, according to which strategic ball bearings are considered ISO 492 standard 4 or higher class, provided that the rings and balls are made of Monel (Monel- nickel alloy, 52-67% nickel and copper alloy) or beryllium.
Toxic gas monitoring systems and related detectors
ECCN 2B351
HS Codes: 853180, 853190, 902710; 902720, 902730, 902790
2B351 Toxic gas monitors and monitoring systems and their dedicated detecting components, other than those specified in 1A004, as follows; and detectors; sensor devices; and replaceable sensor cartridges therefor:
a. Designed for continuous operation and usable for the detection of chemical warfare agents or chemicals specified in 1C350, at concentrations of less than 0.3 mg/m3; or
b. Designed for the detection of cholinesterase-inhibiting activity.
Basic Description:
Toxic gas monitoring systems are an integral part of hazardous facilities for the production, processing, and disposal of chemicals. Of course, such systems are also used at facilities working with chemical warfare agents.
Monitors are subsystems of detection systems that can operate continuously and sample the environment (i.e., without constant human intervention) to immediately inform personnel of the presence of a particular agent or precursor.
Continuous air monitoring systems that operate in near real-time mode can very quickly notify personnel of a leak/splash within minutes, while other systems may be used in a laboratory setting for longer sampling periods and to verify readings/data from continuous air monitors.
Toxic gas monitoring systems and specialized detection components are considered strategic if they have one of the following characteristics:
a. Continuous operation and the ability to detect specified concentration levels of certain chemicals associated with chemical weapons, or
b. Discovery of the activity of cholinesterase inhibitors (e.g nerve-paralytic agents sarin, soman, etc.).
Visual and/or audible alarms should be activated on detectors or main control units to warn personnel of the presence of a dangerous concentration of toxic gases in the working environment;;
The device may have a numeric display panel for displaying detected gas data and markings along the panel indicating the concentration unit (e.g, parts per million or ppm).
Toxic gas monitoring systems mainly use two popular detection methods: ion motion (or mobility or displacement) spectroscopy (IMS) and gas chromatography (GC) in combination with (or combining or using) different types of detectors.
Other detection methods include surface acoustic wave (SAW) spectroscopy, infrared (eg OP-FTIR), electrochemical detection, or photoionization detection (PID). However, regardless of the detection method, documentary identification must consider what types of chemicals and concentrations the detection system can detect and whether it can operate continuously.
Toxic gas monitoring systems and related detectors are transported in the same way as other sensitive electronic devices. Each device must be packed in a carton and protected with STYROFOAM™ sheet or equivalent. Individual components must be sealed in plastic bags or in cardboard inner containers.
Today, gas analysis systems are used in almost all types of industry, in populated areas and cities, and in general, to determine the cleanliness and quality of air in the environment, for scientific research, etc. Therefore, the detection of chemical agents is not always the purpose of gas monitoring systems.
When identifying such items, the main determining factor is the list of gases indicated in the technical data sheet of the device.
For example, OIZOM's Polludrone- real-time air monitoring system, which simultaneously combines the ability to monitor various air quality parameters (such as harmful gases, dust concentrations, radiation, etc.), continuously collects, collects and transmits data.
Crucibles
HS Codes: 6903 10; 6903 20; 6903 90; 8103 91; 8112 39; 8112 31; 8112 99
The above information was derived from "A Handbook for the Nuclear Suppliers Group Dual-Use Annex," published by the U.S. Department of Energy in April 1996[93].
[93] https://database.riskreport.org
2A225 Crucibles made of materials resistant to liquid actinide metals, as follows:
a. Crucibles having both of the following characteristics:
1. A volume of between 150 cm 3 and 8 000 cm 3 ; and
2. Made of or coated with any of the following materials, having a purity of 98 % or greater by weight:
a. Calcium fluoride (CaF 2 );
b. Calcium zirconate (metazirconate) (CaZrO 3 );
c. Cerium sulphide (Ce 2 S 3 );
d. Erbium oxide (erbia) (Er 2 O 3 );
e. Hafnium oxide (hafnia) (HfO 2 );
f. Magnesium oxide (MgO);
g. Nitrided niobium-titanium-tungsten alloy (approximately 50 % Nb, 30 % Ti, 20 % W);EN 16.5.2012 Official Journal of the European Union L 129/101
2A225 a. 2. (continued)
h. Yttrium oxide (yttria) (Y 2 O 3 ); or
i. Zirconium oxide (zirconia) (ZrO 2 );
b. Crucibles having both of the following characteristics:
1. A volume of between 50 cm 3 and 2 000 cm 3 ; and
2. Made of or lined with tantalum, having a purity of 99,9 % or greater by weight;
c. Crucibles having all of the following characteristics:
1. A volume of between 50 cm 3 and 2 000 cm 3 ;
2. Made of or lined with tantalum, having a purity of 98 % or greater by weight; and
3. Coated with tantalum carbide, nitride, boride, or any combination thereof.
Various goods classified under the above HS codes (for example, refractory ceramic products (for example, retorts, crucibles, muffles, plugs, chokes, stands, jars, pipes, tubes, casings, rods, shafts and plugs etc.), when moving across the border, always the question arises whether this goods are dual-use items classified under the ECCN 2A225.
A crucible is a ceramic or metal vessel in which metals or other substances can be melted or processed at very high temperatures. They are made from materials whose melting point is significantly higher than that of the metal or substance being processed, which is resistant to corrosion and inert to aggressive chemicals.
Actinoids or actinides belong to a family of 15 radioactive chemical elements, which includes uranium, plutonium and thorium. It is these elements that are used as nuclear fuel in nuclear reactors and weapons of mass destruction. To be used for these purposes, these substances are heated/baked in crucibles and shaped into certain sizes. Therefore, crucibles must be made of materials that can withstand high temperatures (for example, the melting point of uranium dioxide 2875 ° C) and the chemical attack of these substances.
The Niobium-Titanium-Tungsten alloy is the color of 316 stainless steel when initially formed, but turns golden as a result of nitriding. An alloy is relevant if it contains about 50% Nb, 30% Ti and 20% W. For example, the Nb-30Ti-20W composition alloy is "TRIBOCOR 532N" (Fansteel), which is forged by the usual traditional method.
The metal can be easily worked and it is possible to obtain details of various complex shapes from it by cold or mechanical working and welding. Surface nitriding at temperatures > 1800°C achieves high surface hardness of the alloy. The metal is corrosively resistant to aggressive environments, including hydrochloric acid, nitric acid, phosphoric and sulfuric acids, as well as chloride solutions, and is inert in contact with uranium and uranium alloys.
Crucibles made from other materials specified in 2A225.a. are primarily used for melting and casting metallic ductile materials. Due to nuclear criticality, crucibles with a capacity of more than 6.5 liters are not used.
Crucibles specified in 2A225.b and 2A225.c are used for melting and casting plutonium to produce components for nuclear explosive devices. In this case, 0.05 L (50 cm3)-2 L (2000 cm3) capacity crucibles made of tantalum or coated with tantalum compounds are considered strategic.
Since high purity of the product is necessary for this process, the best option is to use tantalum, which minimizes the reaction of plutonium with the crucible and provides the possibility of using the electron-beam melting procedure.
Compressors
ECCN: 0B004. b.2
HS subheading: 8414 80
* Plant for the production or concentration of heavy water, deuterium and deuterium compounds and specially designed or prepared equipment and components therefor, as follows:
- Single stage, low head (i.e. 0,2 MPa) centrifugal blowers or compressors for hydrogen sulphide gas circulation (i.e. gas containing more than 70 % H2S) with a throughput capacity greater than or equal to 56 m3/second when operating at pressures greater than or equal to 1,8 MPa suction and having seals designed for wet H2S service.
A compressor is a mechanical device that increases the pressure of gas by reducing (compressing/pumping) its volume. Depending on the construction and functional purpose, there are many types of compressors (piston, centrifugal, screw, membrane, etc.), which are actively used in all areas of industry, where it is necessary to create high gas pressure or its lower volume.
Air blowers and compressors used to circulate hydrogen sulfide gas in water-hydrogen exchange columns are difficult to distinguish from compressors for the petrochemical industry, as can be seen in the first, second and fourth photos. However, useful information about such devices can be gleaned from information plates, which are likely to be affixed to the compressor/air damper, its motor or gear housing. For example, if a compressor has a nameplate, it will indicate the manufacturer and some design parameters such as case size, rotational speed, and the maximum amount of pressure the case can withstand.
These compressors ensure the circulation of wet (moist) hydrogen sulfide (H2S) from the upper low-temperature exchange column (cold column) to the lower part of the high-temperature exchange column (hot column) in the two-temperature water-hydrogen sulfide exchange process, which is a heavy water production process (so-called Girdler -Sulfide or GS process).
Hydrogen sulfide gas saturated with water vapor in the cooling column enters the circulator, where typical conditions for the cooling column are created: the pressure is about 2 MPa, and the temperature is 35°С. The required circulator pressure rise is about 0.2 MPa, which is equivalent to a very low power jet (≈7500 J/kg), which can easily be obtained with a single-stage centrifugal compressor or air damper.
A machine producing such a weak jet is more commonly called an air blower. The first photo shows a single-stage compressor/air blower with its transmission consisting of an electric motor, a reducer, and a coupling.
Compressors for the Girdler-Sulfide process are driven directly by the motor (ie no gearbox is required). The second photo shows a weak-jet single-stage centrifugal compressor designed for the low pressures typical of the Girdler-Sulfide process for heavy water production.
GS air blowers and their drive systems are designed with wet hydrogen sulfide properties in mind. e.g.
A long connector may be used between the motor and the air damper to minimize the possibility of hydrogen sulfide electric current explosion.
Compressor materials should be selected taking into account the corrosive properties of hydrogen sulfide.
A key feature of centrifugal compressors and air blowers and a detail differentiating them from conventional air compressors is the vane disk (compressor vane; compressor working eye), a complex rotating component that transfers energy to the process gas.
As the vane disc is subjected to high loads and may break due to sulphide corrosion, it should be made of aluminum. The vane discs of the compressor are shown in photo 3.
Compressor housings can be made of carbon steel, as well as AISI 316 austenitic stainless steel.
Carbon or stellite (a stellite-alloy mainly containing cobalt, chromium and tungsten) gaskets are used in compressors to minimize the risk of hydrogen sulfide gas leakage into the environment.
As mentioned above, compressors are mechanical devices used to increase pressure in various compressible liquids or gases, most commonly air pressure. Compressors are needed in all industries to supply air to workshops or equipment, pneumatic tools, paint sprayers and abrasive-jet machines, air cooling systems, dryers, gas pipelines, etc.
Therefore, it is very common to import, export and transit compressors, and each time it is necessary to determine whether this particular equipment is of strategic purpose.
As specified in 0B004.b.2, the compressor shall be of the single-stage centrifugal type. Therefore, the screw, diesel, piston and other standard compressors shown in the photo, which are most often found, regardless of their cost, dimensions and other parameters, do not represent the scope of interest of the checklist:
Centrifugal compressors are used primarily in large-volume equipment, such as commercial refrigeration units, large processing plants, and pipelines, and can supply up to 200,000 cubic feet per hour (340,000 m3/hr) of air.
The manufacturer does not indicate that the compressor is prepared to work with hydrogen sulfide.
If we compare the characteristics of this compressor with the parameters specified in 0B004.b.2, we will see that the construction characteristics of the compressor DAC550 do not meet the requirements of 0B004.b.2, in particular, the compressor DAC550 is not single-stage and is not prepared to work with hydrogen sulfide, And its maximum capacity (=35160 m3/h) is much less than 56 m3/s (=201600 m3/h).Therefore, we can assume that the DAC550 compressor is not a strategic product.
Lightweight turbojet and turbofan engines[94]
[94]https://mtcr.info/wordpress/wp-content/uploads/2017/10/MTCR-Handbook-2017-INDEXED-FINAL-Digital.pdf
HS headings: 8411, 8807,Turbojet and turbofan engines, other than those specified in 9A001, as follows;
a. Engines having both of the following characteristics:
1. Maximum thrust value greater than 400 N (achieved uninstalled) excluding civil certified engines with a maximum thrust value greater than 8 890 N (achieved uninstalled), and
2. Specific fuel consumption of 0,15 kg/N/hr or less (at maximum continuous power at sea level static and standard conditions);
b. Engines designed or modified for use in “missiles” or unmanned aerial vehicles specified in 9A012
Turbojet Engine-is an aircraft jet engine commonly used in airplanes. It consists of a gas turbine and a jet nozzle. The gas turbine has an air intake with an intake manifold, a compressor and a combustion chamber, as well as a turbine driven by a compressor.
A turbofan or fan jet engine is also a type of aerojet engine that is widely used in aircraft propulsion systems. These types of engines have a single-stage, large-diameter fan that delivers a large volume of air through the engine at any airspeed, including low takeoff and landing speeds.
Engines of the mentioned category can move unmanned aerial vehicles and cruise missiles over long distances. These engines are very similar in construction to civil aircraft engines, but with smaller dimensions and power.
The photo shows a small Williams F107 (WR19) turbofan engine manufactured by Williams International (weight 30 kg, main rotor diameter: 0.3 m, special fuel consumption: 69.6 kg/kN/h (0.0696 kg/N/h); maximum thrust force for various modifications 1.9-6.22 kN), which was created for cruise missiles.
The main sub-components of gas turbine engines are fan (in case of turbofan engine), compressor, combustion chamber and turbine.
The compressor, which consists of one or more stages of stationary and rotating blades of aerodynamic cross-section, suffocates the air, compresses it and sends it to the combustion chamber.
The combustion chamber is a heat-resistant (high-temperature resistant) tube in which air is mixed with fuel vapors (evaporating, evaporating fuel) and ignited. Burning continues even after ignition.
Ignition is initiated by spark plugs. Combustion products, i.e., exhaust gases, enter the turbine, which consists of one or more stages of mutually fixed and rotating aerodynamic blades. The turbine takes as much energy from the gas stream as is necessary to drive the compressor. The remaining energy provides traction.
Next, the gas flow will pass through a compression channel or nozzle to maximize the thrust created by the engine. A turbofan engine has a large diameter multi-bladed fan stage ahead of the compressor.
Turbofan engines typically have higher thrust and lower fuel consumption than turbojet engines.
Turbojet engines are used in shipbuilding, energy and some types of land transport. Marine gas turbine engines are used by naval and civil ships.
Appearance: A typical small gas turbine engine has the shape of a cylinder less than one meter long and 0.5 meters in diameter. Many accessories such as alternator, hydraulic pump, fuel pump, metering valve and related wiring are visible on the engine.
Small economical engines weigh 30-130 kg. Larger sized motors have 1m. diameter and 3 m. length.
Engine parts are made of various materials, both metallic (aluminum, steel, titanium and special alloys) and non-metallic (Teflon, nylon, carbon and rubber - used for sealing and insulation) substances.
Photo 2. Small turbofan engines for cruise missiles (left and bottom right) and unmanned aerial vehicles (top right).
Engines are usually prepared for transportation in several stages: protective plates are placed on the openings at the head and bottom and fixed with adhesive tape.
The engine is covered with a protective paper and packages with a moisture-absorbing substance are glued on top. The engine is wrapped in corrugated cardboard, placed in a polyethylene bag, then placed in a solid wooden box on foam blocks, the box is filled with foam and sealed.
Since cruise missile engines are often self-starting using pyrotechnic cartridges, shipping containers must be marked to indicate the presence of explosives when packaged properly (see Photo 3.)
Photo 3. In the photo on the right is a wooden box for transporting an engine, with a warning label about the presence of explosive cargo; in the center - a small turbofan engine placed in a
wooden box and polyethylene; On the right is a small turbojet engine prepared for transportation.
As an example, consider the General Electric CF34-3 turbofan engine of the Bombardier Challenger 605 civil aircraft, with the following parameters:
According to the control list:
A turbofan engine is subject to export controls, if:
Maximum thrust value greater than 400 N, and for civil certified engines -8 890 N;
Specific fuel consumption of 0,15 kg/N/hr or less;
"dry weight" less than 750 kg;
The diameter of the rotor of the first stage, in this case the fan, is less than 1 m. If you compare the characteristics, you can see that the CF34-3 engine has significantly better maximum thrust value and less fuel consumption, and the diameter and weight are slightly higher than indicated in the control list.
Despite the insignificant difference, the CF34-3 was considered a dual-use item and a permit was issued for export.
In addition to the engine types described above, the control list includes:
Powerful Aero gas turbine engines (9A001) as well as Ramjet, scramjet or combined cycle engines (9A011)
Marine gas turbine engines (9A002), turboprop air engines for unmanned aerial vehicles (9A102), solid fuel (9A107), hybrid (9A109) and impulse (9A111) jet engines, and others.
Marine gas turbine engines are considered strategic if their ISO standard continuous power rating is equal to or greater than 24245 kW a specific fuel consumption is not more than 0.219 kg/kWh (9A002)-202.7 g/kW-hr
According to the note:
marine gas turbine engines’ includes those industrial, or aero-derivative, gas turbine engines adapted for a ship’s electric power generation or propulsion.
An example of a marine gas turbine engine (9A002) is the General Electric Company's LM6000 gas turbine engine.
The LM6000 engine is based on the CF6-80C2 aircraft turbofan engine and has been modified for use in shipboard and/or power systems.
If we compare the parameters of the LM6000PC engine with the technical parameters defined by the 9A002, we will see that according to its nominal power and fuel consumption, the LM6000PC engine is a strategic item and the dual-use items permit was issued for its export.
Unmanned aerial vehicles – UAVs (HS Heading 8802)
In recent years, there are sets of frequently asked questions (FAQ) about export/import of unmanned aerial vehicles (so-called drones). The questions are asked on whether they need a permit or not, what type of unmanned aerial vehicles are under control, etc.
UAVs are widely used for strategic, as well as civilian purposes: in military/intelligence operations, for the delivery of missiles, explosive devices and chemical and biological agents, for the supervision and safety of industrial and commercial facilities, in cartography and film industry, tourism and entertainment industry, for agricultural purposes, and in smuggling and other illegal activities. Along with the development of technologies, UAVs have acquired useful as well as harmful functions for a large number of societies. Therefore, the control of the products is extensive control worldwide.
According to the definition in the dual-use items control list, unmanned aerial vehicle (UAV) (9) means any aircraft capable of initiating flights and making controlled flight and navigation without any human presence on board.
In the control list (categories 1, 3, 6, 7 and 9) UAVs have the following meanings:
- Complete rocket systems and unmanned aerial vehicle systems, capable of delivering at least 500 kg of payload to a range of at least 300 km (ballistic missiles, space launch vehicles, spacecraft and research rockets), complete atmosphere UAVs (including wing missiles, radio operated targets and intelligence drones), capable of delivering at least 500 kg of payload to a range of at least 300 km. These are flying machines flying at high altitudes (up to 20,000 m), can fly for 24-48 hours, while the gross takeoff weight is 2,500-12,500 kg (HALE, MALE);
- Complete rocket systems and complete atmosphere UAVs, which are not required to carry 500 kg of payload, but can fly at a distance of 300 km. These are UAVs with a long duration of flight and with the gross takeoff weight from 50 kg up to 1,500 kg (9A112.a);
- UAVs having autonomous flight control and navigation capabilities due to direct natural vision of the operator, incorporating an aerosol dispensing systems/mechanisms with a capacity greater than 20 liters or designed or modified to incorporate an aerosol dispensing systems/mechanisms with a capacity greater than 20 liters. Such UAVs can be operated by the navigation system on-board and can be moved from a programmable route or satellite or from the operational area by the operator. Chemical agents are represented in the form of aerosol, powder or liquid substances, e.g. such as pesticides for fogging fields, dry chemicals for the formation of aerosol clouds or for the artificial separation of rainfall from clouds. UAVs equipped with aerosol dispersion devices often have the form of a helicopter and are used for pesticides and fertilizers in agriculture. As a rule, these devices are characterized by lower resistance, limited flight distances and durations, but similar models can also be encountered in controlled aircraft. These kinds of UAVs are classified under ECCN 9A112.b within the control list and are subject to export control.
- small-size UAVs, with a maximum endurance higher than or equal to 30 minutes, but lower than 1 hour and designed to take-off and have stable controlled flights in wind gusts equal to or exceeding 46,3 km/h (25 knots); or with a maximum endurance of 1 hour or higher;
These UAVs are controlled by the Missile Technologies Control Regime (MTCR), whose purpose was the control of the proliferation of nuclear weapons delivery systems at the time of its formation (1987), in particular, systems capable of delivering at least 500 kg of payload to a range of at least 300 km. Since 1992, MTCR has expanded its control and covered UAVs for all types of mass destruction. These parameters under which such devices were subject to control
- were included in the control list (WA-LIST (14) 2, 25-03-2015) in 2015, as it is considered that small-size UAVs can cause strategic threats and can also be used to deliver military cargoes to the place of destination. These kinds of UAVs are classified under ECCN 9A012 within the control list and are subject to export control.
Machine tools for turning, machine tools for milling, machine tools for grinding, cutting (removing) machines, weaving machines, deep-hole-drilling machines
(ECCNs 1B001, 2B001-2B003, 2B201, 2B204): HS Headings 8446-8460
Machine tools for removing metals, ceramics or composites are used for making machine tools, jewelry, wood and other household and civilian products. In addition, these machine tools make available critical details for the equipment used to manufacture nuclear weapons and uranium enrichment plants (for example, cylinders for centrifuges, nuclear reactor components, bearings, etc.), powder materials and explosive devices for making rocket fuel, metals and composite powder and other materials, which results in their strategic significance. Simply put, machine tools intended for making especially sensitive products and components included in the control list are also subject to control.
The classification of machine tools according to the dual use items control list is carried out on the basis of their accuracy (positioning accuracy and the size and surface of the axle), the number of axles and numerical control.
For example, the following machine tools are considered as dual use items and their export is controlled:
Machine tools for turning and cutting that can be equipped with electronic devices for numerical control, having two or more axes, which can be coordinated simultaneously for contouring control
, and having unidirectional positioning repeatability equal to or less (better) than 0,9 μm (2B001.a; 2B001.b);
Machine tools for turning, machine tools for milling, machine tools for grinding, cutting (removing) machines, weaving machines, deep-hole-drilling machines
(ECCNs 1B001, 2B001-2B003, 2B201, 2B204): HS Headings 8446-8460
Machine tools for removing metals, ceramics or composites are used for making machine tools, jewelry, wood and other household and civilian products. In addition, these machine tools make available critical details for the equipment used to manufacture nuclear weapons and uranium enrichment plants (for example, cylinders for centrifuges, nuclear reactor components, bearings, etc.), powder materials and explosive devices for making rocket fuel, metals and composite powder and other materials, which results in their strategic significance. Simply put, machine tools intended for making especially sensitive products and components included in the control list are also subject to control.
The classification of machine tools according to the dual use items control list is carried out on the basis of their accuracy (positioning accuracy and the size and surface of the axle), the number of axles and numerical control.
For example, the following machine tools are considered as dual use items and their export is controlled:
Machine tools for turning and cutting that can be equipped with electronic devices for numerical control, having two or more axes, which can be coordinated simultaneously for contouring control
, and having unidirectional positioning repeatability equal to or less (better) than 0,9 μm (2B001.a; 2B001.b);
- Machine tools for milling that can be equipped with electronic devices for numerical control, having three or more axes which can be coordinated simultaneously along one or more linear axes for contouring control, and having unidirectional positioning repeatability equal to or lower (better) than 1,1 μm (2B001.c);
Machine tools for removing metals, ceramics or composites by means of water or other liquid jets, including those employing abrasive additives, electron beam or laser beam, and having at least two rotary axes that can be coordinated simultaneously for contouring control with a positioning accuracy lower (better) than 0,003o etc.
Fibrous and filamentary materials
(ECCNs 1C010, 1C210): HS Headings 5402, 5407, 5503, 6815
According to the definition in the dual-use items control list, fibrous or filamentary materials include continuous monofilaments, continuous yarns and roving, tapes, fabrics, random mats and braids, chopped fibers, staple fibers and coherent fiber blankets and whiskers of any length, either monocrystalline or polycrystalline,.
The dual-use items control list includes organic (aromatic polyamides), inorganic (e.g. glass, quartz, boron, basalt and so forth), ceramic (e.g. aluminum oxide) and carbonated fibers and filaments that are used for modern composite structures (for filling) in order to improve their physical and mechanical properties.
- One of the examples of synthetic organic fibers is the aramid fiber that has found considerable use in military and aerospace industry. The world's most famous aramid fibers are manufactured as Kevlar® (so-called Para-Arid) and Nomex® (the so-called Meta-Arid) trade marks (manufactured by Du Pont). Aramid tissue is no less strong than steel, and it is about five times lighter. Aramid fibers can withstand high-speed shells and have vibration breakdown properties, so they are used for ballistic protection of military aircraft, also for manufacturing protective reinforced motors, thermal impact protective clothing and armored helmets.
The classification of organic fibrous or filamentary materials on the basis of the dual use items control list is carried out if they have the following technical properties (1C010.a):
1. "Specific modulus" exceeding 12.7 × 106 m; and
2. "Specific tensile strength" exceeding 23.5 × 104 m[95].
[95] According to the definition in the dual-use items control list, "Specific modulus" is Young's modulus in Pascal, equivalent to N/m2 divided by specific weight in N/m3, measured at a temperature of (296 ± 2) K ((23 ± 2°C) and a relative humidity of (50 ± 5)%, and "Specific tensile strength" is ultimate tensile strength in Pascal, equivalent to N/m2 divided by specific weight in N/m3, measured at a temperature of (296 ± 2) K ((23 ± 2)°C) and a relative humidity of (50 ± 5)%.
- Carbon fibers, known as graphite fibers, are very thin (5-15 microns) in the form of threads composed of microscopic crystals combined with carbon atoms. Carbon fibers are characterized by high tensile strength and low weight. They are resistant to chemical substances and high temperatures and low heat expansion. Because of these qualities, carbon fiber products have been widely used in space industry, wind energy, housing, construction, automotive industry, sports (golf clubs and tennis rockets, skis, bikes), culture (musical instruments - guitar, piano) and entertainment (toys like remote control machines). Some carbon fibers (e.g. HexTow® (Hexcel), SIGAFIL® (SGL Group), TORAYCA® (Toray), PANEX® and PRYON® (Zoltek), also Pyrofil® (Mitsubishi/Grafil)) are used for making strategic products such as nuclear reactor components, uranium enrichment centrifuge rotors, missile batteries, etc. There is information about the existence and use of so-called graphite bombs. This is a bomb containing carbon fibers, which explodes sending carbon fibers the electrical lines and electric power stations, causing short circuits and paralyzing the power system.
The classification of organic fibrous or filamentary materials on the basis of the dual use items control list is carried out if they have the following technical properties (1C010.b):
1. "Specific modulus" exceeding 14.65 × 106 m; and
2. "Specific tensile strength" exceeding 23.5 × 104 m..
Centrifuges
(ECCNs 0B001; 2B122; 2B219; 2B352.c): HS Headings 8401, 8413, 8421
Centrifuge is a device that uses centripetal force to separate the distinctive density of gas, liquid or granular materials. Centrifuges are used in civil areas such as oil and gas extraction, medicine, laboratory surveys, testing, separation of ores and minerals, agriculture and so forth. The control list includes several types of centrifuges with different technical parameters that are used for uranium enrichment, separation of agents of chemical and biological weapons and testing of missile components.
Gas centrifuge is a device that makes it possible to separate gases with various molecular masses. Gas centrifugal technology is one of the most economical and effective methods of isotope separation and is widely used to enrich uranium with U-235 isotope.
There is so-called cylindrical shape rotary rotor placed in vacuum casing, which is supplied with uranium in the gaseous condition - Uranium hexafluoride (UF6). Under the influence of centripetal force generated by the rapid rotation of the rotor, which exceeds several hundred thousand times the gravity of the Earth, the gas begins to be divided into heavier (U-238) and light (U-235) fractions. In the lower axial tube placed in the rotor, the depleted U-238 molecules begin to gather, which are heavier, and the light U-235 will then fall into the centrifuges via upper axial tube until U-235 with the required concentration is received.
The speed of centrifuge rotation reaches 1,500-2,000 per second, which is 10 times higher than the rotation speed of the engine turbine (for comparison, the washing machine cylinder completes 1,000 rotations per minute). Centrifuge runs continuously for a period of three decades, and performs 2 trillion cycles during work cycles. At the same time, it works with very aggressive and corrosive substance - uranium hexafluoride.
The rotor rotates around the needle that relies on the corundum, and the upper part hangs in the air through the electromagnetic field, which is created by a magnetic suspension bearing (0B001.b.7). It is easy to guess that such a device and all its components should be made of tough special materials resistant to corrosion and mechanical impact.
Rotors can be manufactured by high-strength maraging steel, titanium, aluminum and aluminum alloys, carbon fibrous and filamentary materials, or nickel alloy containing more than 60% of nickel by weight. Manufactures in the form of tubes or cylindrical solid forms made from such materials are also included in the control list and therefore, they are subject to export control (1C202, 1C210, 1C216).
- Gas Centrifuge and all its components, as well as all technologies and software related to their design and use are subject to import, export and transit control (2B201, 2B204, 0D001, OE001).
- Centrifuges in which the container rotates at a very high speed to create centripetal force in order to enable this force to affect the container's inner part and impart acceleration above 100 g (gravity) are subject to export control, as they can be used to test missile details and to determine statistical characteristics of accelerometer.
Centrifugal separators, capable of continuous separation with the flow rate exceeding 100 liters per hour, made of components of polished stainless steel or titanium with one or more
- sealing joints within the steam containment area capable of in-situ steam sterilization in a closed state are subject to export control, because through the separators it is possible to restore biological agents or toxins with such parameters;
Tritium
(ECCN 1C235): HS Heading 2844 40
Tritium, or super heavy hydrogen, is a hydrogen radioactive isotope with symbol T or 3H. The value of its half-life is 4,500 ± 8 days (12.32 ± 0.02 years). It releases 18.6 keV of energy in the process of decay, while the share of Beta particles is 5.7 keV and they can penetrate only about 6.0 mm of air, being incapable of passing through the dead outermost layer of human skin. Due to their low energy, electrons emitted from the tritium are easily contained by clothing and surgical rubber gloves, but there is a radioactive threat while breathing, oral reception and absorption from the skin.
Tritium is widely used for civil purposes as a source of luminescence. Low-energy beta particles affect phosphorous materials and lead to their lighting. Due to these features, tritium is used in such devices as wrist clocks, targets, direction indicators, bellows, and so forth. Tritium is used in analytical chemistry and nuclear batteries to generate electricity. In addition, tritium, together with deuterium, is used to generate the neutron impulse to initiate the reaction of the nuclear reactor and in the hydrogen bombs – as thermonuclear fuel. Tritium is an important fuel for nuclear synthesis in some types of reactors.
Because of the importance of tritium in nuclear technologies, the control list includes tritium, tritium compounds, mixtures containing tritium in which the ratio of tritium to hydrogen atoms exceeds 1 part in 1,000, and products or devices containing any of the foregoing. All these products are subject to export, import and transit control. the control list does not control a product or device containing less than 1,48 × 10 3 GBq (40 Ci) of tritium.
The working group:
Khalilov Rovshan
Guluzade Cafar
Nasibova Aygun
Aliyev Mirzali
Muradi Imran
Sultanova Gunel
Aliyev Yashar
REPUBLIC OF AZERBAIJAN
Section 1. Brief overview of International and National legislative framework
Azerbaijan has been the member of many international bilateral multilateral treaties and agreements in the field of export control. However, in most organizations, the country has the status of state party. On the basis of mentioned international documents country established own national normative legal base as well.
In terms of main implementation of above-mentioned document requirements, it has been implemented the following actions so far:
· determination of obligations and responsibilities of state body
· creation of coordination and collaboration between authorized bodies
· establishment of joint commission behind Cabinet of Ministers which is considered to control authorized body in the field of export control
· determination of licensing mechanisms and other issues at national level
Additionally, these national mechanisms and requirements are also illustrated in the Export Control Handbook of the country. Azerbaijan has a great interest to research international best experience in the field of export control. In order to archive this goal the country has taken part in a lot of workshops, practical training proqrammes which are organized by BAFA and other international institutes so far. Behind that, it is also organizing annually some workshops for the customs authorities.
In accordance with the national law on export control The State Customs Committee is not responsible for issuing export control lisenses for the stakeholders. By the law, the customs authorities have right to check the completeness of all required documents as well as the special permits depending on Harmonized Code of goods. Depending on that code of goods and means of transport, the holder of procedure should submit special permit to the customs authorities with other mandatory documents.
The list of dual use goods was accepted by the Decree of Cabinet of Ministers. Currently. it is making some amendments to list in order to fully adapt the international standards and requirements. The completion of this update period of current legislation it should be given the information on that.
1.1. International bilateral and multilateral Treaties and Agreements
Treaty on the Non-Proliferation of Nuclear Weapons (NPT)
https://www.un.org/disarmament/wmd/nuclear/npt/
Azerbaijan ratified the NPT on September 22, 1992. The Comprehensive Nuclear-Test-Ban Treaty (CTBT) was ratified by Azerbaijan on 2 February 1999.
The Comprehensive Nuclear-Test-Ban Treaty (CTBT) https://www.ctbto.org/
Azerbaijan signed it on July 28, 1997 and ratified it on February 2, 1999.
Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on their Destruction (OPCW) https://www.opcw.org/chemical-weapons-convention
Azerbaijan signed The Chemical Weapons Convention (CWC), officially the Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on their Destruction January 13, 1993 and ratified on February 29, 2000.
The Convention on the Prohibition of the Development, Production and Stockpiling of Bacteriological (Biological) and Toxin Weapons and on their Destruction (BTWC) https://www.un.org/disarmament/biological-weapons/
Azerbaijan signed the BTWC on February 26, 2004 and ratified it on June 06, 2005.
The Hague Code of Conduct against Ballistic Missile Proliferation (HCOC)
https://www.hcoc.at/?tab=what_is_hcoc&page=text_of_the_hcoc
Azerbaijan joined The HCOC on November 25, 2002. The Code does not call for the destruction of any missiles, it is simply an agreement between States on how they should “conduct” their trade in missiles.
Security Initiative against Proliferation (PSI) www.armscontrol.org
Azerbaijan supports and participates in this international initiative.
Container Security Initiative (CSI)
Azerbaijan is participating as state party in this initiative/
The Arms Trade Treaty (ATT) https://thearmstradetreaty.org/
To date, the treaty has 110 member states and 31 signatory countries that have not yet ratified it.
Azerbaijan did not sign ATT, consequently no ratification is evident.
NON-PROLIFERATION REGIMES
Nuclear Suppliers Group (NSG) http://www.nuclearsuppliersgroup.org/en/
Azerbaijan is not a member country of NSG. Today NSG unites 48 countries.
Missile Technology Control Regime (MTCR) http://mtcr.info/
After the collapse of the Soviet Union, the station was leased and operated by Russia's Aerospace Defense Forces, providing Russia with a residual strategic foothold in Azerbaijan. Russia has transferred control of the facility to the government of Azerbaijan, which transferred the facility out of its Armed Forces inventory to the State Committee on Property Issues.
Australia group (AG) https://australiagroup.net/en/index.html
Azerbaijan is not participating in the Australia Group.
The Wassenaar Agreement (WA) https://www.wassenaar.org/
No participation of Azerbaijan in the group of WA
Zangger Committee http://zanggercommittee.org/
Also known as the "NPT Exporters Committee"
Azerbaijan is not a member of The Zangger Committee.
Protocol for the Prohibition of the Use in War of Asphyxiating, Poisonous or Other Gases, and of Bacteriological Methods of Warfare
https://www.un.org/disarmament/wmd/bio/1925-geneva-protocol/
Azerbaijan is non-party to this Geneva Protocol.
1.2. Legal Framework of Azerbaijan
Legislation points in the export control system in Azerbaijan are issued according to the European system, but not limited to. Those are criteria of permission issuance, refusal or suspension; documentations for acquiring permissions; methods and approaches for implementation of control,Azerbaijan team briefly researched the division of the structure at Customs Committee and also their functions. Although Section 2 was not widely researched during the Q1 (it will study more widely during Q2), however some outlines were systemized.
The legal framework governing export controls at the national level considers international non-proliferation obligations in Azerbaijan, also guidelines for multilateral and bilateral export control regimes in the country, and includes EU standards in dual-use items control approach.
Control of dual-use items in Azerbaijan is structured by the below-mentioned normative acts: international treaties and agreements; control of military and dual use items; licenses and permits; customs code; criminal code; general administrative code; special orders of the Cabinet of Ministers of Azerbaijan related to the dual use export control.
The Customs Code of Azerbaijan explains the rules and regulations of import of such goods into the customs area and also export of such goods. There are a number of normative documents within Customs code, such as for solving disputable deals, customs violations, the procedures for customs authorities, movement of goods through the border. Besides, Azerbaijan successfully implements electronic system for obtaining permission with regards to the dual-use items, getting licensing and certificates. This system is an electronic module which allows electronically govern structures issuing licenses, permits and certificates based on the legislation of Azerbaijani customs in terms of dual-use export control.
Section 2. Basic customs procedures
Customs procedure means any of the special customs procedures of export, re-export, temporary export, release for free circulation, re-import, under which goods and means of transport that are under the customs control can be placed pursuant to provisions of the Customs Code of Azerbaijan. In accordance with the national customs legislation customs clearance means actions on placing of goods and means of transport under the relevant customs procedure and completion of that customs procedure. For the purposes of customs legislation*, all customs procedures divided into the following groups:
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special customs procedures
Release for free circulation
Export
Re – import
Re – export
Temporary export
Transit (international and domestic)
Processing (inward and outward)
Storage (Temporary storage and customs Warehouse)
Special use (temporary admission and end use)
Free zone
* Customs legislation consists of the Constitution of the Republic of Azerbaijan, this Code, Law of the Republic of Azerbaijan on Customs Tariff and other normative legal act and international agreements adopted in accordance with them, of which the Republic of Azerbaijan is the participant.
*Brief information about national customs procedures
Release for free circulation means the customs procedure under which goods imported to the customs territory shall be released for free circulation on this territory following payment of all customs duties and taxes and fulfillment of the required customs clearance prescribed by legislation. Foreign goods placed under the customs procedure of release for free circulation obtain status of internal goods.
Foreign goods intended to be put on internal market for sell, consumption and use shall be placed under the customs procedure of release for free circulation.
Customs procedure of release for free circulation leads to the following:
collection of customs payments determined by legislation;
application of trade policy measures;
completion of the other procedures determined in respect of importation of goods.
release of goods – İf declarant respond all the requirements and conditions that prescribed in customs legislation the customs authority immediately carry out the release of the goods. The declarant also have to submit the customs declaration to the customs clearance office as well. All goods covered by the same customs declaration shall be released by the customs authorities at the same time.
Export:
Internal goods exported beyond the customs territory and intended for permanent stay beyond its borders shall be placed under the customs procedure of export.
The following cases are excluded:
· goods placed under the special customs procedure of end-use or processing out of customs territory;
· goods placed under the special customs procedure of internal transit or temporary exported from the customs
Re–export:
Re-export of foreign goods 128.1. When foreign goods are exported form the customs territory, customs authorities carry out their export clearance and submit notification on re-export for presentation to other competent customs authorities.
The following cases are excluded:
· goods placed under the special customs procedure of international transit which cross customs territory;
· goods reloaded from one means of transport to another within free zone or directly re-exported from free zone;
· goods placed under the special customs procedure of temporary storage which directly have been re-exported from the place of temporary storage. Amounts of import or export duties and taxes paid in respect of goods re- exported from the customs territory within 1 (one) year from the moment of release for free circulation shall be reimbursed where such goods meet requirements defined by the relevant executive authority.
Transit:
Transit means special customs procedure of conveyance of goods under the customs control from one customs authority to another customs authority.
Special customs procedure of international customs transit shall be customs procedure where foreign goods are conveyed across the customs territory under the customs control between two points without payment of customs duties, value added tax and excises, as well as without appliance to the goods of trade policy measures. Conveyance of goods under the special customs procedure of international transit shall be implemented in the following order:
· conveyance of goods began or is to end outside the customs territory;
· conveyance of goods shall be implemented between two points of the customs territory through the territory outside the customs territory.
Re-importation shall be exported goods fully or partially returned into the customs territory within 3 (three) years from the moment of exportation in the same condition, i.e. without any processing in the foreign country, and shall be released for free circulation with full exemption from import customs duties and taxes, as well as without application of economic policy measures to these goods.
Goods under free circulation or goods of inward processing can be placed under the customs procedure of re-importation.
Section 3. Classifier of customs documents
*Customs declaration types
Declaration means oral, written or electronic submission of information to the customs authorities on goods and means of transport conveyed across the customs border of the Republic of Azerbaijan (hereinafter customs border) placed under the customs control.
For the different purposes the following customs declarations are using:
· Main customs declaration – for standard case the declarant can use the main form for customs and special customs procedures;
· short import declaration - which is submitted in electronic form and before crossing the customs borders. This type of declaration is considered to carry out risk analyzes in advance and gives opportunity to apply customs control forms in selective format;
· short export declaration – when goods directly exporting from temporary storage places the persons have to submit this sort of declaration to the relevant customs office;
· simplified customs declaration - shall be submitted to the customs authority in the following cases:
· placing of goods under the relevant customs procedure by authorized economic operators;
· customs clearance of humanitarian goods;
· conveyance by the natural persons across the customs border of goods not intended for manufacturing or commercial purposes but subject to declaring in written form;
· additional customs declaration - In case of submission of simplified declaration (for AEO and humanitarian goods) the declarant fills in additional declaration containing other data required for filling of customs declaration for the declared customs procedure.
· periodic customs declaration - where the same goods and means of transport are conveyed by the same person regularly, customs authorities may permit issue of one periodic declaration on goods and means of transport conveyed across the customs border within certain period;
· incomplete customs declaration - where declarant in virtue of reasonable excuse cannot submit complete customs declaration, customs authorities may permit submission of incomplete customs declaration in the order determined by the relevant executive authority;
Re – export notification – within the re-export customs procedure holder of procedure have to submit re-export notification to border customs office.
Other documents:
The following documents are required for customs control:
· Transport documents,· Declaration containing information on goods and means of transport.
In order to place the goods under the relevant customs procedure (special customs procedure), the declarant is obliged to submit the following documents to the customs office with the customs declaration.
· A contract confirming the implementation of foreign trade or a document confirming the right of a person to own, use and (or) dispose of goods, or any other document;
· Transport documents depending on the type of transport during transportation of goods and means of transport.
Taking into account the category of goods, mode of transportation and other features with the customs declaration the following documents must be submitted to customs office:
· in case of direct or indirect customs representation, the relevant confirming documents;
· document that shows the customs debt has already paid;
· a document confirming the declared customs value of imported goods;
· license for import, transit and export of plant protection products and:
· agrochemicals or precursors;
· certificate of conformity (for mandatory certified goods)
· veterinary certificate;
· food safety certificate;
· phytosanitary certificate;
· quality certificate;
· order of the Cabinet of Ministers of the Republic of Azerbaijan on import of goods specified in “Rules of regulation of import – export operations in the Republic of Azerbaijan “approved by the Decree of the President of the Republic of Azerbaijan N 609 of June 24, 1997 or opinions of relevant government agencies;
· special permit for export, import, re-export, re-import and transit of goods under export control.
*Note: We have been expanding our research in this dimension. Above mentioned material has only brief informative character.
Section 4. Transportation of strategic goods, as well as, transportation of dangerous goods
Azerbaijan has a Caspian Sea port at Alat, southwest of Baku. Alat is situated at a rail and road hub, allowing for multimodal north-south and east-west transit and can accommodate rail ferries that transport up to 52 train cars at a time. The Alat Customs Port creates a potential transit route for trade, transportation of strategic goods between East, Central, and South Asia and Europe. In terms of transportation, Azerbaijan has also vastly expanded its air cargo facilities with cold storage and a modern general cargo terminal at the Heydar Aliyev International Airport in Baku. These air cargo facilities will complement Azerbaijan’s investments in road, port, and rail infrastructure.
Azerbaijan’s geographic location creates some challenging position from the viewpoint of the fact that countries in the region are subject to sanctions or types of trade restrictions which recent events demonstrate and prove those facts. This increases the importance of the export control system in the region.
Based on the definition, strategic goods are considered to be the goods that have strategic meaning and significance, both military and civilian from the viewpoint of security and international acceptance. The transportation of such goods and consequently services (eg., digital transmission of software and/or technology, technical assistance or intermediate trading) is subject to a number of rules
All goods and means of transportation imported into the customs territory and exported from this territory irrespective whether they are subject to customs duties and taxes shall be subject to the customs control.
Customs authorities implement the customs control for the purposes of ensuring fulfillment of customs legislation regulating arrival of goods and means of transportation at the customs territory or their departure from this territory, transit across this territory and end-use, other legislation and international agreements, control on fulfillment of which shall be imposed on the customs authorities.
Modern technologies and equipment shall be used during customs control.
The customs officials implement the customs control as the following:
· control of goods and means of transportation;
· personal inspection;
· checking of information required for the customs purposes, documents in writing on electronic or paper materials, including accompaniment of goods conveyed across the state border crossing points of the Republic of Azerbaijan, veterinary, phyto-sanitary, hygienic and other certificates;
· customs audit;
· interrogation of persons;
· customs examination of goods and means of transportation subject to the customs control, territories and premises, warehouses of temporary storage and customs warehouses, territories and premises located in free zones and other places where activity control on which is imposed on the customs authorities shall be implemented;
· patrolling and customs surveillance.
On the strategic goods, customs authorities may conduct additional inspection measures in order to ensure the security issues, especially depending on their chemical and physical features; to be aware of the customs control measures at border crossing points and customs clearance places.
Customs control is conducted in the three different stages. Within these stages customs authorities carry out all measures on the goods and means of transportation in terms of the prescribed obligations and responsibilities. In accordance with the 113th article of the Customs Code of the Republic of Azerbaijan the economic operator should submit the short import declaration before arrival of means of transport to the customs territory. By using the data of the mentioned declaration customs authorities are able to conduct the customs control measures in a selective and risk based way. During the registration stage all means of transportation must be registered at Border Control Post (BCP). The short import declaration is the crucial base for the risk management system as well.
(SAMS)
Actions related to the registration of trucks in SAMS
The goods and means of transport should be registered in SAMS at border crossing point. For the registration at border checkpoints most information was delivered in advance by short import declaration. However, customs inspector include date (which is not delivered with SID) manually. For instance, the information on truck driver etc. We are working to update the new form of Short customs declaration and by using the new form of mentioned document it is not required any physical action in terms of registration of goods and means of transport. In order to change the data content of SID we took the best practice of international approach (Summary Entry Declaration, TIR EPD (Electronic Pre arrival declaration) and so on.
Registration is implementing in “Single Window” room at BCPs.
First stage: Border Line procedures
Firstly, Border protection authorities (not customs official) release the persons, goods and means of transport from the state border of country on the basis of valid document.
Second stage: TRS, Time Release Camera.
For measuring the time limits regarding crossing time of goods and means of transport the TRS camera is installed near by the Portal Radiation Monitor. The TRS Camera is capable to record the means of transport template number then this data will be transferred to Single Window Room (to registration officer). TRS camera is also used for the confirmation of arrival of vehicles to the customs border. By using these transferred data, the customs official also obtains the opportunity to keep under control the existency of SID.
We are working to establish the new Working Group to analyze the TRS camera data for the fulfillment of WCOs recommendation in that field. TRS methodology helps to customs to improve the border procedures and to decrease the time limits required for the border prosedures and customs clearance places.
Third stage: Portal Radiation Unit
In accordance with the current legislation on radiation protection mainly the three government agencies are responsible for the fulfillment of preventive measures. They are: Ministry of Emergency Situations, The Border Protection Service and State Customs Committee. Within the process if it is emerged any radiation signal depending on the level of dangerous situation, the issues also must be coordinated with the relevant authorities (Ministry of Health, Food Safety Agency). The customs officials shall help to the main agencies in the process.
Fourth Stage: Automated Disinfection Unit.
In accordance with the current legislation, the customs officials conduct sanitary quarantine measures at BCPs. (with Border Protection Service). The Technological Scheme adopted among the State Customs Committee, Border Protection Service and Ministry of Health related to the sanitary hazardous and human diseases. At BCPs three control measured lines were created by the customs authorities. This preventive measures also might be conducted by using the new generation of technical devices. Automated Disinfection Unit is the best tool to implement the preventive measures at BCPs. During pandemic time the customs officials undertake to implement all preventive measures against COVID and other diseases. All BCPs were supplied the modern automated disinfection units and other equipment (thermal imager for persons).
If the Unit detects any threat, the customs authorities ensure the isolation and PZR laboratory issues, as well.
Fifth stage: Identification of weight indicators of transport vehicle.
The customs authorities measure the means of transport at BCPs. The weight bridge is integrated with the Single Window room. After weight bridge stage if customs inspect detects any difference between the transport documents and Weight bridge indicator, then this difference should be added as amendment to the document. During the calculation of customs value and applying of customs tariff, the destination office inspector should take into account this difference. Within the declaring process, the customs representative also takes into account mentioned amendment.
Sixth stage: Passport control
The Border Protection Service officials register and verify the documents of persons passing through the BCPs, ensure the information to the İner – Departmental Automated Information – Search System.
Seventh stage: Customs examination
The customs examination teams which include the professional examination experts are conducting customs control measures on the goods and means of transport. The Automated Risk Management System and the customs inspector (manually) can make decision conducting customs examination. During the examination process, customs inspectors implement the physical examination on the goods and means of transport.
Section 5. Risk management system in relation to goods subject to customs clearance
In order to decrease the risk and to promote the effective methods of customs control, the customs authorities use the technical devices for the purposes of conducting customs control. Above-mentioned Technical devices are vastly used by the customs authorities.
For risk conduction based on customs control, the customs authorities create the risk profiles on the specific category of the goods and means of transportation. The process is totally automated, so that, the detailed information on the strategic and dual use goods is integrated the Automated Risk Management System (ARMS). Within the border crossing operations the system automatically sends the informative signals for the customs officials. Above-mentioned information base is regularly renewed and upgraded.
At the customs clearance, the system has other risk profiles that help to customs officials to select the relevant customs control form.
Within the process the manual risk also might be detected by the customs officials. However, in that case, the customs officials may designate the customs expertise in order to clarify the code of goods and other features.
Although the Risk Management steps are not well-established and developed, the following stages are important: identification of the risk context; risk analysis; assessment of risk; risk profiling.
Section 6. Interaction of the Customs Service with the authorities, agencies and stakeholders
In accordance with the 12th article of Customs Code For the purposes of fulfillment of their responsibilities the customs authorities cooperate with other state authorities, including legal and natural persons, law-enforcement authorities. Officials of state authorities should create appropriate conditions with regard to the fulfillment of their responsibilities for the customs authorities.
For the purposes of international trade facilitation, the customs authorities carry out veterinary, phytosanitary and other forms of control determined by the relevant executive authority of the goods on the state border crossing points, in the shortest time possible on the basis of ‘single window’ principle. The customs authorities and other state authorities for the purposes of reduction of risks, provision of security of activity of international trade supply chain, facilitation of conditions for foreign trade, implement information sharing among themselves and with the customs and other competent state authorities of other countries in the order determined by the relevant executive authority with regard to arrival, departure and transit of the goods and means of transport to customs territory conveyed across the customs border. To modernize the customs service and provide more favorable conditions for business and international trade, adopted the "State Program on development of the customs system of the Azerbaijan Republic for 2007 to 2011." Under this Programme, 11 November 2008, the President of the Republic of Azerbaijan signed the "Decree on the application of the principle of" single window "for inspecting the goods and vehicles transported across the border checkpoints of the Azerbaijan Republic". Thus, from January 1, 2009 in Azerbaijan in the clearance of goods and cargoes at the customs border the "single window" system was implemented. Prior to implementing the principle of “single window” the system for registration of papers operated with a local database of each stakeholder: veterinary services, plant quarantine services, sanitation and quarantine service. In this case, it should be noted that among these services do not exist the electronic data exchange. Firstly, a unified, centralized database at the Customs Committee was developed. Further, a system of registration of goods and vehicles at the border and this system was adapted to the business process of each service separately.
The existing model of the “Single Window” was built on the Unified Automated System of Customs Management and e-customs service of Azerbaijan, which has accelerated the implementation of single window. The system "Single Window" is built on a platform of information technology, customs registration and automated customs management systems and risk management systems. Importers, exporters, freight forwarders, brokers, as well as other governmental bodies, using this system, refer to customs in the "Single Window". After signing the decree "on the application of the principle of" single window "for inspecting the goods and vehicles transported across the border checkpoints of the Azerbaijan Republic" the State Customs Committee of Azerbaijan began to implement the project and took the following steps:
- to analyze the business process at the state border of Azerbaijan inspection of goods and vehicles transported across the checkpoints;
- to organize a commission under the Customs Committee to implement the principle of "single window";
- to improve human resource capacity in local customs and learn from best international practices;
- to create a flow chart of the principle of "Single Window";
- The customs authorities have begun to inspect documents for goods and vehicles crossing the state border crossing points of the Azerbaijan Republic, including veterinary, phytosanitary, sanitary and other certificates (certificates) for goods, and veterinary, phytosanitary, sanitary control of these goods on border;
- set hardware and software;
- has monitored the results of implementing the pilot project "Single Window" at the state borders.
- in the framework of infrastructure development border customs checkpoints have been constructed and reconstructed, can support a single window system.
- The customs authorities at the border began to veterinary and phytosanitary control through the control of veterinary, phytosanitary and sanitary certificates and other authorizations and issuance of permit forms.
Customs Committee builds new customs checkpoints on the border of the international level. These checkpoints cover all areas of the state border of Azerbaijan. Other customs checkpoints have been reconstructed and provided with new technical equipment.
The principle of “single window” provides the following features:
• Information regarding the border crossing at entry and exit of goods and vehicles;
• Exchange of electronic certificates of the relevant ministries: the phytosanitary, veterinary and sanitary and quarantine services;
• Information about the declared goods;
• Preliminary information on vehicles crossing the border;
• Report regarding registered facts of customs offenses;
• Various financial reports; • A report on foreign exchange savings.
So far the system was upgraded many times step by step.
Over the “single window” principle the SCC (State Customs Committee) has the electronic integration with the above mentioned government agencies.
Future approach to “Single Window” principle:
The project "Electronic Customs" (e-Customs), which is one of the components of the "Electronic Azerbaijan" ("e-Azerbaijan") program, covers one of the main areas of the state program on development of the customs system (2007-2011). For this reason, the project "e-Customs" is based on legal and regulatory documents created within the framework of "e-Azerbaijan". Therefore, completion of the project "e-Customs" is closely related to the implementation of "e-Azerbaijan".
Creating a system of "e-Customs" is one of the main objectives of the Strategy of Information and Communication Technologies of Azerbaijan State Customs Committee and mainly consists of three subsystems:
Unified automated control system in the customs service;
Information management system of Internet resources;
Corporate Portal - an intranet system of the Customs Committee.
"E-Customs", mainly based on the SCC project being conducted in "unified automated control system in the customs service," which consists of the following modules:
Electronic customs control systems;
Automatic customs procedures;
The automated control system and operations center to combat smuggling and violations;
Automatic financial activities;
The automated registration system of currency;
Resource Management System;
Automate your workflow;
The risk management system;
Automated control system for enterprise resource planning (ERP);
The system of "e-service" for maintenance;
Automated control system of "single window" to check the goods and vehicles crossing the road crossings of the border.
Modules are implemented in phases, projects for the integration of information resources of other state bodies of the country, which will be completed within the "E-Azerbaijan".
Section 7. Liability for violation of customs rules and procedures
The customs authorities are the authorities of interrogation and investigation on cases of customs crimes. Conduct of interrogation and investigation and implementation of procedural activity by the customs authorities governed by the Criminal Procedure Code of the Republic of Azerbaijan.
Investigation of cases of administrative violations of the customs rules, examination of such cases as well as implemented proceedings, forms of administrative punishment applied for the administrative violations governed by Administrative Offences Code of the Republic of Azerbaijan.
The customs authorities implement operational and investigation activities with a view to suppression and detecting crimes, investigative proceedings and interrogation identification of the persons responsible for preparing, committing and having committed such crimes which the customs authority shall be in charge of.
In the Code of the Azerbaijan Republic on Administrative violations one chapter is totally related to customs rules (Administrative misconduct, encroaching on customs rules).
In this respective chapter there are some articles regarding the violations of customs rules and procedures. For example there are: transportation of goods and transport vehicles via customs border of Azerbaijan Republic without customs control, concealing from customs control of goods transported via customs border of Azerbaijan Republic, transportation of goods and transport vehicles via customs border of Azerbaijan Republic with deceptive use of documents or means of identification, non-declaration or non-verified declaration of goods and transport vehicles, release of goods, transport vehicles and its documents without permission of corresponding body of executive power of Azerbaijan Republic or non-delivery to corresponding body of executive power of Azerbaijan Republic and etc.
Depending of the capacity of violations it might be considered as the crime. In the criminal code of Azerbaijan smuggling, not returning on territory of the Azerbaijan Republic of subjects of art, historical and archeology property of the Azerbaijan Republic and foreign countries, not returning from abroad of means in foreign currency, evasion from payment of customs charges, the violations on export control and others were considered as crime.
Azerbaijan’s customs authorities regularly carry out necessary operational and search measures to prevent customs offenses, including illegal trafficking in narcotic drugs, psychotropic substances, and their precursors, as well as identify and prosecute persons involved in preparing and committing crimes of this kind, with identification of risk indicators and through appropriate analysis. The customs control is carried out using technical control means and the involvement of dogs from the canine service.
Section 8. National commodity nomenclature of foreign economic affairs
Customs duties on import and export of goods are based on the customs tariff. Other measures provided by the legislation regarding the import and export of goods are applied according to the tariff classification of these goods.
One of the bases on which the customs tariff is applied is the goods nomenclature of foreign economic activity. During the application of customs payments to the declared goods, their code corresponding to the goods nomenclature of foreign economic activity is taken as the basis. When calculating the amount of customs debt for customs duties, the measurement unit and customs value reflected in the goods nomenclature of the foreign economic activity of the Republic of Azerbaijan are taken as the basis. The goods nomenclature of foreign economic activity is a classification that includes the group, position, auxiliary position, sub-auxiliary position of the goods in the form of a number sign or a group of number signs (codes).
Interpretation rules of the goods nomenclature of foreign economic activity and comments (notes) on positions at any classification level are an integral part of the goods nomenclature of foreign economic activity. The goods nomenclature of foreign economic activity used in the Republic of Azerbaijan should be in accordance with the Harmonized System of interpretation and coding of goods of the World Customs Organization, Combined System of the European Union and the uniform goods nomenclature of foreign economic activity of the Commonwealth of Independent States.
Goods nomenclature of foreign economic activity of The Republic of Azerbaijan, rate of import customs duties and rate of export customs duties and basic interpretation rules of goods nomenclature of foreign economic activity it was approved by the decision no. 500 of the Cabinet of Ministers of The Republic of Azerbaijan dated November 17, 2017.
Carrying out the goods nomenclature of foreign economic activity
• ensures monitoring of changes and additions to the international bases of the goods nomenclature of foreign economic activity, international comments (notes) and decisions on the interpretation of these bases, and prompt application in customs work;
• prepares proposals for adapting the goods nomenclature of foreign economic activity to its international basis;
• together with the relevant executive authorities, ensures the development of the goods nomenclature of foreign economic activity, the preparation of proposals for changes and additions to it;
• represents the Republic of Azerbaijan in international organizations dealing with the preparation of the international bases of the goods nomenclature of foreign economic activity, changes and additions to it, its interpretation and application;
• ensures the publication of the goods nomenclature of foreign economic activity;
• ensures the publication of international comments (notes) and decisions on the interpretation of the goods nomenclature of foreign economic activity, its international basis;
• provides the relevant executive authorities with international explanations and decisions on the goods nomenclature of foreign economic activity and its interpretation;
• provides a detailed description of goods by type in the goods nomenclature of foreign economic activity;
• ensures the performance of other functions on conducting the goods nomenclature of foreign economic activity
Section 9. Control lists
Legal framework:
Law of the Republic of Azerbaijan on Export Control http://www.e-qanun.az/framework/5519
• Rules of export control
• Customs procedures for export of goods subject to export control (works, services, results of intellectual activity) to individual countries
• Procedure for conducting inspections before and after the issuance of a special permit for foreign economic relations on goods subject to export control (works, services, results of intellectual activity)
• Procedure for control over the use of dual-use goods (works, services, results of mental activity) for the intended purpose http://www.e-qanun.az/framework/12490
• Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on their Destruction (Chemical Weapons Convention or CWC). The Republic of Azerbaijan joined the Convention on November 9, 1999. The Biological and Toxin Weapons Convention (BTWC). The Republic of Azerbaijan joined the Convention on December 5, 2003.
• Rules for issuing special permits for goods subject to export control (works, services, results of intellectual activity)
• Procedure for conducting inspections before and after the issuance of a special permit for foreign economic relations on goods subject to export control (works, services, results of intellectual activity)
• Decision of the Cabinet of Ministers on approval of the "List of results of works, services, intellectual activity" on codes corresponding to the nomenclature of goods subject to export control and other regulatory legal acts of the Azerbaijan Republic. http://www.e-qanun.az/framework/12161
The four (plus one) main multilateral export control regimes are
• The Australia Group (AG)
• The Missile Technology Control Regime (MTCR)
• The Nuclear Suppliers Group (NSG)
• The Wassenaar Arrangement on Export Controls for Conventional Arms and Dual-use Goods and Technologies (Wassenaar Arrangement, WA)
• Zangger Committee (ZC)
Execution control by customs authorities
Customs authorities shall exercise export control in accordance with Customs Code and the Law of the Republic of Azerbaijan “On Export Control”.
The following operations are applied to goods subject to export control:
export,import,re-export,re-import,transit and other foreign economic activity
Customs authorities illegal movement of goods under export control across the customs border, as well as to prevent the export of these goods to countries and end users where export is prohibited and restricted.
Executive Authorities
The list of the executive bodies exercising export control according to the nomenclature of the goods falling under export control, and also issuing special permission on categories and Sections of goods (works, services, results of intellectual activities), according to the inventory (works, services, results of intellectual activities) performing check before issue of special permission, control of use of dual-use goods for stated purposes determined by the legislation (as an example in the Table below)
Strategic Chemicals by CAS Registration Number
Classification of types of documents used in the presentation of information in column 31 of the CD
Precursor Chemicals to Be Monitored Programme Global Shield (PGS)
Nowadays, news about loss of life and property due to IED blast have become common and frequent. No country in the world is safe from threat of use of IEDs by terrorist and other criminal organizations. Recently, the world has witnessed an increase in the use of improvised explosive devices (IEDs) and other homemade explosive devices manufactured from the illicit diversion and trafficking of precursor chemical shipments.
In this occasion, there is a Programme Global Shield which focuses on the high risk precursor chemicals as identified by industry experts as posing the greatest threat for use as explosives. The Precursor chemicals to IED, their chemical name, other common names, HS code and CAS code, common use are summarized in the specific table.
Statement (order) for receipt of special permission:
for legal entities - the name, legal address of the legal entity and type of the external economic transaction performed by means of special permission;
for physical persons - name, middle name, surname, data of the identity certificate (series, number, date and the name, and the address of the organization which issued the certificate);
information on the receiver of goods (sender of goods) and end user;
the copy of the signed agreement (contract);
the copy of the certificate of origin of the exported goods.
the copy of the certificate on acceptance on accounting of customers (applicants) by tax authorities
Responsibility for violation of the legislation of the Azerbaijan Republic on export control
Legal entities and individuals of the Republic of Azerbaijan, as well as foreign countries, violating the legislation on export control, shall be held civil, administrative and criminal liable in accordance with the legislation of the Republic of Azerbaijan.
Capacity building measures
Capacity building measures carrying out mainly in two levels
Science and Technology Center in Ukraine (STCU) – Targeted Initiative funded by the European Union
US State Department programs (EXBX Program)
In 2016, the STCE ad-hoc project had turned into a long term STCE programme. With the advancement of the programme, it now focuses on 6 fundamental areas:
Organization of STCE Train-the-Trainer workshops for accreditation of experts.
Delivering STCE trainings based on the WCO Training Curriculum.
Operation of the STRATComm communication platform on 24/7/365 basis and the further development of the system.
§ Organization of further STCE-related law enforcement operational exercises.
§ Enhancement of industry outreach at the global and national level.
The part of the national control list is illustrated in the below table.
Three kinds of inspection/control are considered:
Concerning the special permission for the import, export and transit of goods under the provisions of export control are determined by the Decree No. 167 of the President of the Republic of Azerbaijan dated December 29, 2004 “On Approval of the Law of the Republic of Azerbaijan “On Export Control””, and the Rules approved by the Resolution No. 230 of the Cabinet of Ministers of the Republic of Azerbaijan dated December 15, 2005 “On approval of some normative acts on the application of the Law of the Republic of Azerbaijan”, provision of special permit as per the “Rules for provision of special permit for the goods with limited civil circulation” approved by the Decree No. 292 of the President of the Republic of Azerbaijan dated September 12, 2005, and provision of certificate in the cases defined by the Law of the Republic of Azerbaijan "On application of special economic regime for export-oriented oil and gas activities” dated February 2, 2009.
At the same time, list of works, services, results of intellectual activity by codes according to the nomenclature of goods under export control (Control Lists) are approved by the Ministers of Cabinet by the Decree № 42, dated February 9, 2006.
Section 10. Case studies of customs clearance and customs control of dual use goods
Customs plays an essential role on regulating of dual use items. İnternational standards are built on a foundation of core Customs capabilities such as risk assessment, targeting, inspection, and audit. Using these capabilities, Customs ensures that cross-border movements of goods comply with national laws and regulations. In accordance with the 275th article of Customs Code customs authorities is determined as bodies of export control and customs authorities exercise export control according to the procedure, established by this Code and the Law of the Azerbaijan Republic "About export control".
In accordance with the 276.1th article customs authorities stop illicit movement through customs border of the goods falling under export control, including commodity export to the states and to end users to which export of these goods is prohibited or limited. Officials of customs authorities, authorized to exercise export control, shall observe confidentiality of information obtained by them from other state bodies and persons having participation.
Verification and Commodity Identification
When a shipment is targeted for Customs verification, based on risk-assessment as discussed, several options may be considered. These should be applied in a progressive manner, beginning with least invasive and disruptive and progressing as necessary. Three kinds of inspection/control are considered here:
· Documentary examination (often conducted electronically)
· Technical examination (often with portal monitors, container x-ray scans, other detection systems)
· Physical examination (putting eyes, hands, and/or instruments on the goods)
In order to ensure the transparency in examination process the State Customs Committee promote the e- services in this field.
The customs control measures
Within the informing and registration, phase customs authorities are able to verify the information that submitted in advance by the declarants by using the Risk
Management system profiles or manually. In documentary control phace the customs authorities require to submitte relevant special permission from the holder of customs procedure.
The border Crossing points designed in the above mentioned form. The opeations and prcodures should be done by customs stuff as the illustrated sequence. In the customs clearance phase the stakeholders add the special permission to the 31st box of customs declaration as a necessary additional document. According to the rules of submitting of customs declaration the all border risk profiles automatically filter the all pre – arrival information, as well as the short import declaration.