By: Derek Bloom
Marks & Sokolov
Date: March 9, 2020
Rostransnadzor has commenced multiple administrative proceedings against aviation companies and is imposing fines for non-compliance Russia with passenger and crew disclosure requirements. Rostransnadzor is the shortened name of the Federal Service for Transportation Oversight, a branch of the Russian Federation Ministry of Transportation Supervision.
Russian passenger data disclosure requirements, the ACDPDP, came into effect as of December 31, 2013. The Russian business aviation community was iniitally somewhat in denial about the ACDPDP system. Thought was given initially not to the question how to comply with the ACDPDP system, but how not to comply with the ACDPDP system. Attention was given to arguments about why operators of business aircraft could not comply. Some advocated that all operators of business jets should agree not to comply with the Russian passenger information disclosure rules, there would be some safety in numbers, and the business aviation industry could take a wait and see approach. There is no longer any safety in taking a wait and see approach. Delay will lead to administrative proceedings and fines. Instead, operators should bring themselves into compliance with the passenger and crew disclosure requirements as soon as possible.
The Russian Ministry of Transportation Order that created the ACDPDP system is Order No. 243, originally dated July 19, 2012. Order No. 243 had an original effective date of July 1, 2013 which was subsequently amended to be December 1, 2013. The name of the Order is “The Procedure for Creation and Maintenance of an Automated Centralized Data Base of Personal Data about Passengers, and the Delivery of Information”.
Order No. 243 provides that required information is to be submitted to a state enterprise which is the designated agent of the Ministry of Transportaton (“Zaschitainfotrans” or “ZIT”). The Order provides that all air carriers must submit to ZIT personal data about passengers and crew. The information required is, in general, all the information that a commercial airline requires when registering a passenger for a flight, plus information about a planned flight. See Paragraph 51 of the Order.
The main point for business aviation is found in Paragraph 44 of the Order (previously Paragraph 49) which, in its current version provides that:
An air carrier that operates scheduled international carriage of passengers, and also non-scheduled flights of passengers to the Russian Federation, from the Russian Federation, across the territory of the Russian Federation, and for carriers that are residents of the Russian Federation also within the boundaries of the territory of the Russian Federation according to a charter agreement for an aircraft (an air charter), shall transfer to the ACDPDP system information about passengers collected during the process of registration of passengers, not later than 15 minutes before the departure of the aircraft.
A subject of transportation infrastructure that is carrying out registration of passengers of an air carrier, carrying out regular, and also non-scheduled carriage of passengers from the Russian Federation shall submit to the ACDPDP system information about passengers collected during the process of registration of passengers, not later than 15 minutes before the departure of the aircraft.
There may be a few interpretive questions about the meaning of various paragraphs within the Order. A business aviation operator or service provider is a carrier within the meaning of the Order. The term is defined in Article 1 of the Federal law “On Transportation Security”, No. 16-FZ, dated 09.02.2007. A carrier is a legal entity or an individual entrepreneur that undertakes the responsibility for the transporting of a passenger, luggage and cargo from the place of departure to the place of destination and delivering the luggage and cargo to the authorized person (receiver).
If an operator does not comply with the Order and submit the required information, the operator could be held liable for breaching the requirements of the Law on Transportation Security. Under Article 19.7.9 of the Russian Code on Administrative Violations, an operator and its officials personally responsible for non-submission of the Data could be subjected to administrative fines with regard to each incident (each flight about which data is not submitted). In the case of non-submission of the Data through negligence the amount of fine is up to one hundred thousand (100,000) rubles for the company and up to thirty thousand (30,000) rubles for the company officials, per incident.
A recurring violation of the same provisions may result in the imposition of fines in the amount of two hundred thousand (200,000) rubles for the company and fifty thousand (50,000) rubles for the company officials. The amount of a fine in the case of intentional non-submission of the Data is up to five hundred thousand (500,000) rubles for the company and up to one hundred thousand (100,000) rubles for the company officials, per incident. In the case of a recurrent or intentional violation, the law provides for administrative suspension of the business activity of the company for up to 90 days. It is not clear how this penalty could be applied to a foreign company, other than by means of a blanket prohibition on flights to Russia. In the case an operator is found to have violated the law intentionally the amount of fine will be up to two million (2,000,000) rubles.
The position of ZaschitaInfoTrans is that, notwithstanding that there are some ambiguities and inconsistencies in defined terms used in the Russian Ministry of Transportation Order No. 243 that created the ACDPDP system, bearing in mind that the purpose of the ACDPDP system is to promote national security in accordance with the Russian law “On Transport Security”, which applies equally to domestic and international flights, all ambiguities and inconsistencies are to be resolved in a manner that requires disclosure of passengers and crew on all flights to, within and from Russia.
ZaschitaInfoTrans advises that, while its role is limited to collecting information about passengers and crew, if an operator makes a written request to Rostransnadzor (the Federal Service for Transportation Oversight of the Russian Ministry of Transport) and presents legal arguments why: (1) a company such as an operator that is not the “owner” or “operator” of an aircraft, but is only providing limited flight support services, (2) there are definitional ambiguities, such as that Paragraph 44 of Order No. 243 provides that an “air carrier” and a “subject of transportation infrastructure” must submit information about passengers and crew, and an operator is not an “air carrier” nor a “subject of transportation infrastructure”, (3) a flight of a private aircraft is not a “commercial flight” but is a “general aviation flight”, or (4) a flight is not “carriage”, as defined, but is a “private flight” with an owner onboard, it will be told that resistance is futile. Passenger and crew information must be submitted with regard to all flights to, within and from Russia.
Reliance on statements from handlers that compliance is not required is not an adequate legal defense. The position of ZaschitaInfoTrans and Rostransnadzor is that definitions will be interpreted expansively, and potentially further expanded and amended, so that there are no loopholes. One may suppose this is the correct answer considering the purpose of the passenger and crew disclosure requirement is for security purposes, and there should be no gap allowing aircraft transporting unknown persons to arrive or depart unannounced.
Certain further amendments have been made to Order No. 243 and are pending that will remove some of the ambiguities. For example, Paragraph No. 50 of Order No. 243 has been amended to add to a prior requirement that a three letter airline code and a flight number be submitted to identify a flight. Now, ZaschitaInfoTrans will issue a special customized code for each legal entity that owns an aircraft that is used on private flights. ZaschitaInfoTrans will issue a special customized code only in respect of those owners of aircraft that do not have IATA and/or ICAO codes. Presently, ZaschitaInfoTrans is preparing a further clarification that passenger and crew information must be submitted with regard to all charter flights to, within and from Russia.
ZaschitaInfoTrans has conveyed that, prior to the 2014 Winter Olympics in Russia, certain Western operators contacted ZaschitaInfoTrans about how to disclose passengers on flights they would be operating to Russia. Many of the foregoing issues were raised. ZaschitaInfoTrans resolved the issues in return correspondence, however, it has not issued written public information about how these issues were resolved. One operator indicated that it would be providing flight support services for many privately owned aircraft. ZaschitaInfoTrans and that operator reached an agreement whereby that operator entered into a single agreement with ZaschitaInfoTrans that it would submit passenger and crew information, and then listed in an attachment to its application to enter into an agreement with ZaschitaInfoTrans all the separate privately owned aircraft with regard to which it would submit information. Each aircraft was issued a separate code by ZaschitaInfoTrans. According to ZaschitaInfoTrans, that approach was supported by Russian Ministry of Transport and became a precedent.
There are additional issues to be addressed when an operator applies to ZaschitaInfoTrans to commence to submit passenger and crew information about which Marks & Sokolov would be pleased to assist. Issues concern the accuracy of information submitted, the format of information submitted, the means for submitting information, and possible delegation of responsibility to submit information.
ZaschitaInfoTrans advises that all operators will be treated equally and no operator ought not to be put at a competitive disadvantage by complying while others are not. All operators and service providers will eventually be required to comply by Rostransnadzor.
If you would like additional information about these matters, please contact us.