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Rostechnadzor Elucidates Implementation of Government Decree No. 438 of 03.04.2020

30.04.2020

On April 22, 2020, the Government of the Russian Federation issued Ordinance No. 557 specifying the effect of Ordinance of the Government of the Russian Federation No. 438 of 03.04.2020.
Federal Law No. 98-FZ of April 1, 2020 “Concerning Amendments to Certain Legislative Acts of the Russian Federation on the Prevention and Mitigation of Emergencies” (hereinafter Law No. 98-FZ) and Ordinance of the Government of the Russian Federation No. 438 of April 3, 2020 “Concerning the specifics of Implementation of state control (supervision) and municipal control in 2020, and concerning amending Paragraph 7 of the Rules for the preparation by the state control (supervision) bodies and municipal control bodies of annual plans of scheduled inspections of legal entities and individual entrepreneurs” (hereinafter Ordinance No. 438) as amended by Ordinance of the Government of the Russian Federation No. 557 of April 22, 2020 “Concerning amendments to certain acts of the Government of the Russian Federation in terms of establishing specifics of the implementation of control and supervisory and authorizing Activities in 2020” identified the specifics of the implementation of control and supervision activities for the period until December 31, 2020.
Rostechnadzor elucidates:
1. Law No. 98-FZ and Ordinance No. 438 do not establish prohibitions or restrictions on control measures not regulated by Law No. 294-FZ in the following cases:
1) investigation of the causes of accidents and employment injuries (according to Paragraph 5 of Part 3 of Article 1 of Law No. 294-FZ);
2) checking if the circumstances that served as the basis for the imposition of an administrative penalty in the form of an administrative suspension of activity have been eliminated (according to Paragraph 61 of Part 3 of Article 1 of Law No. 294-FZ);
3) scheduled and unscheduled inspections of the local authorities and state authorities of the constituent entities of the Russian Federation (including the implementation of federal state supervision in the field of safety of hydraulic structures) carried out in accordance with Federal Law No. 131-FZ of October 6, 2003 “Concerning general principles organizations of local self-government in the Russian Federation” and Federal Law No. 184-FZ of October 6, 1999 “Concerning general principles of organization of legislative (representative) and executive authorities of state power of the constituent entities of the Russian Federation”;
4) surveys of hydraulic structures that precede the development of a declaration of safety of hydraulic structures that are in operation, being preserved or liquidated (pre-declaration surveys) in accordance with the Provision on the declaration of safety of hydraulic structures approved by Ordinance of the Government of the Russian Federation No. 1303 of November 6, 1998;
5) arrangements for the issuance of permits authorizing operation of power installations provided for by the Procedure for the organization of work approved by Rostechnadzor Order No. 212 of April 7, 2008 (including inspection of power installations);
6) arrangements for control inspections of elevators, elevating platforms for the disabled, passenger conveyors (moving walkways), and escalators, with the exception of subway escalators, in accordance with the provisions of the Administrative Regulation on the provision by Federal Environmental, Industrial and Nuclear Supervision Service of the public service for putting into operation of elevators, lifting platforms for the disabled, passenger conveyors (moving walkways), and escalators, except escalators in the subways, after their installation in connection with the replacement or modernization approved by Rostechnadzor Order No. 454 of November 27, 2019 (registered with the Ministry of Justice of Russia on January 9, 2020, Reg. No. 57081);
7) commissioning activities (participation in the commissions to decide on the possibility of commissioning), including the implementation of administrative procedures in the framework of the specified activities in relation to the facilities, including:
a) lifting structures, in accordance with the Federal rules and regulations in the field of industrial safety “Safety rules for hazardous industrial facilities where lifting structures are used” approved by Rostechnadzor Order No. 533 of November 12, 2013;
b) ropeways and funiculars, in accordance with the Federal rules and regulations in the field of industrial safety “Safety rules for passenger ropeways and funiculars” approved by Rostechnadzor Order No. 42 of February 6, 2014, and the Federal rules and regulations in the field of industrial safety “Safety rules for freight cableways” approved by Rostechnadzor Order No. 563 of November 22, 2013;
c) equipment operating under excessive pressure (steam and hot water boilers, pipelines and vessels operating under pressure), in accordance with the Federal rules and regulations in the field of industrial safety “Industrial safety rules for hazardous production facilities that use equipment operating under excess pressure” approved by Rosteсhnadzor Order No. 116 of March 25, 2014;
d) escalators in the subways, in accordance with the Federal rules and regulations in the field of industrial safety “Safety rules for escalators in the subways” approved by Rostechnadzor Order No. 9 of January 13, 2014.
Law No. 98-FZ and Ordinance No. 438 do not establish any prohibitions or restrictions for arrangements held in accordance with the approved schedules at high-risk facilities, for which the permanent state control (supervision) regime has been established.
The prohibitions and restrictions established by Ordinance No. 438 do not apply to inspections conducted in accordance with Federal Law No. 170-FZ of November 21, 1995 “On the Use of Atomic Energy.”
With regard to the other types of federal state control (supervision), Ordinance No. 438 establishes an exhaustive list of grounds for conducting inspections of legal entities and individual entrepreneurs, as well as a special procedure for their implementation.
2. Subparagraph "b" of Paragraph 2 of Ordinance No. 438 allows conduct of scheduled inspections exclusively with respect to legal entities and individual entrepreneurs, whose activities and/or production facilities in use are classified as high risk.
The consolidated inspection plan of Federal Environmental, Industrial and Nuclear Supervision Service for 2020 does not contain such inspections.
3. All inspections, including those of legal entities and individual entrepreneurs operating hazardous industrial facilities of hazard classes I, II, and III, hydraulic structures of classes I, II, and III, are subject to exclusion from the inspection plan for 2020 in the manner prescribed by Paragraph 3 of Ordinance No. 438 and the Rules for the preparation by the bodies of state control (supervision) and bodies of municipal control of annual plans for conducting scheduled inspections of legal entities and individual entrepreneurs approved by Ordinance of the Government of the Russian Federation No. 489 of June 30, 2010 (hereinafter the Rules).
Exclusions of inspections must be based on paragraphs 11 to 13 of Subparagraph “a” of Paragraph 7 of the Rules.
4. Paragraphs 1, 2, 6, 7, and 71 of Ordinance No. 438 establish a list of grounds and forms for conducting unscheduled inspections in 2020.
In the presence of facts of harm caused to the life and health of citizens or the threat of causing harm to the life and health of citizens, and natural and man-made emergencies, unscheduled inspections are carried out in coordination with the prosecution authorities. In this case, it is necessary to coordinate the on-site nature of such inspections with the prosecution authorities.
Similar requirements are established for inspections conducted in order to verify the fulfillment of a previously issued order to take measures aimed at eliminating violations that entail an immediate threat of harm to the life and health of citizens.
Moreover, if the basis for conducting inspections at hazardous industrial facilities of hazard classes I and II, and at hydraulic structures of classes I and II is the fact of causing harm to the life and health of citizens, the officials of the territorial department of Rostechnadzor have the right to proceed with an unscheduled on-site inspection immediately with notice to the authorities prosecutors in the manner prescribed by Parts 6, 7, and 12 of Article 10 of Law No. 294-FZ.
Unscheduled inspections are also carried out on the basis of instructions from the President of the Russian Federation, and instructions from the Government of the Russian Federation indicating a specific legal entity and/or individual entrepreneur, and the prosecutor’s requirement to conduct an unscheduled inspection as part of the supervision of the execution of laws on the basis of materials and inquiries received by the prosecution authorities.
Inspections on these grounds may be field visits if such a possibility is provided by the grounds themselves.
5. Subparagraphs “d” and “e” of Paragraph 1 of Ordinance No. 438, Paragraph 4 of Ordinance of the Government of the Russian Federation No. 440 of April 3, 2020 “Concerning the extension of permits and other specifics in relation to licensing activities in 2020” (hereinafter Ordinance No. 440) define the specifics of inspections during licensing control.
In relation to the license applicant who submitted the application for a license, or the licensee who submitted the application for renewal of the license, in accordance with Part 2 of Article 19 of Federal Law No. 99-FZ of May 4, 2011 “Concerning licensing of certain types of activity,” unscheduled inspections are carried out within the time limits established by the relevant administrative regulations (taking into account the non-working days).
Guided by Paragraph 4 of Decree No. 440, it is advisable to conduct such inspections in the field when licensing:
1) operation of explosive and fire hazardous and chemically hazardous production facilities of hazard classes I and II;
2) activities related to the handling of industrial explosives (for hazardous production facilities of hazard classes I and II).
6. The specifics of conducting inspections during the implementation of state construction supervision in 2020 are established by Paragraph 3 of Appendix No. 3 to Ordinance No. 440.

The officials of the territorial bodies of Rostechnadzor must conduct on-site inspections in accordance with the audit program, as well as in the case of notifications specified in Subparagraph “a” of Paragraph 2 of Part 5 of Article 54 of the Town Planning Code of the Russian Federation.

Unscheduled inspections are organized in accordance with the general procedure established by Ordinance No. 438.
7. The results of control and oversight activities are subject to execution in the manner prescribed by Law No. 294-FZ and in the form established by Order of the Ministry of Economic Development of Russia No. 141 of April 30, 2009 “Concerning the implementation of the provisions of the Federal Law “Concerning the protection of the rights of legal entities and individual entrepreneurs in the Implementation of state control (supervision) and municipal control”.”
The results of inspection activities are subject to entry in the Unified Inspection Register of the Federal State Information System in the manner prescribed by the Rules for the formation and maintenance of the unified inspection registry approved by Ordinance of the Government of the Russian Federation No. 415 of April 28, 2015.
When conducting control measures, it is necessary to ensure the fulfillment of conditions, prohibitions, restrictions, and other mandatory requirements for preventing the spread of the new coronavirus infection (COVID-19) established in accordance with the legislation of the Russian Federation.
8. Failure to comply with the established prohibitions on conducting inspections is a violation of the requirements of the legislation on state control (supervision) and entails the invalidity of the results of the inspection in accordance with Part 1 of Article 20 of Federal Law No. 294-FZ of December 26, 2008 “Concerning the protection of the rights of legal entities and individuals entrepreneurs in the implementation of state control (supervision) and municipal control” (hereinafter Law No. 294-FZ).


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