The following issues are scheduled for discussion at the Government Presidium meeting on July 14, 2008:
1. Draft federal laws aimed at reducing administrative limitations on business activity
The draft federal law
On Introducing Amendments to Certain Legislative Acts
of the Russian Federation
Related to the Possibility of Replacing Obligatory Certification
with Declaration of Conformity
The purpose of the draft law is to make more explicit the norms of legislative acts of the Russian Federation introducing obligatory certification of some types of products to ensure the possible use, when necessary, of a declaration of conformity instead of obligatory certification. In addition, the draft eliminates some contradictions between individual provisions of legislative acts and the norms of the Federal Law On Technical Regulation, by, for example, excluding obligatory certification of works (services).
This purpose is achieved without changing the general concept of existing laws, while amendments being introduced will help improve the effectiveness of their implementation by reducing administrative pressure on business.
The draft law provides for introducing amendments to 19 legislative acts (two laws of the Russian Federation and 17 federal laws).
The main subject of change is norms aimed to ensure the possibility of using two forms of acknowledging conformity: declaration of conformity and obligatory certification, in place of the only form stipulated before - obligatory certification.
The essence of these changes - replacing the words "obligatory certification" and "conformity certificates" with the words "obligatory acknowledgement of conformity" and "documents on obligatory acknowledgement of conformity", respectively - will not prevent using obligatory certification in substantiated instances, because obligatory certification is one of the forms of obligatory acknowledgement of product conforming to obligatory requirements.
The adoption of this law will increase the effectiveness of technical regulation by abolishing administrative limitations on business activity through the replacement, when necessary, of obligatory certification with conformity declaration.
The draft federal law
On the Protection of Rights of Bodies Corporate and
Individual Businessmen
When Undergoing State and Municipal Monitoring (Oversight) Inspections
Some aspects of state monitoring and oversight are at present regulated by separate normative legal documents, the basic one being Federal Law No. 134-FZ On the Protection of Rights of Bodies Corporate and Individual Businessmen When Undergoing State Monitoring (Oversight) Inspections.
An analysis of the application practice of Law No. 134-FZ showed that the number of inspection events organised by most state bodies and the time spent by economic entities on them decreased insignificantly. The existing system of monitoring (oversight) still has its problems, it is not effective and efficient enough and the reason is that bodies of state monitoring (oversight) do not share a common ideology.
The existing duplication of functions by federal and regional departments, excessive requirements set to businessmen, and lack of substantiated approaches to proving the necessity of state interference in the economy not only fail to ensure in full measure the safety of goods (works and services), but also increase business costs, reducing the competitiveness of businessmen.
This draft federal law was prepared for the purposes of legal regulation of some problems identified during the application of Federal Law No. 134-FZ.
The main new feature of the draft is an overhaul of the existing system of scheduled monitoring (oversight) inspections. In relation to all types of business activity, a scheduled monitoring (oversight) inspection is held not more than once in three years, except in cases provided for in the draft law. It is proposed to retain a different normative periodicity (depending on the season) only for monitoring and oversight of essential facilities, for which purpose the draft law has a closed list of facilities concerned (medical prevention and treatment institutions, social welfare institutions, pre-school upbringing and educational institutions and other institutions).
The draft law mainly introduces a notice-filing procedure for starting a business activity by making it obligatory for all bodies corporate and individual businessmen before starting their business activity (separate activities) to file a notice about the beginning of a business activity, a notice that meets the requirements (federal, regional and municipal) set to the given type of activity by existing legislation.
A notice about the beginning of a business activity must be filed about the following activities: hotel services, as well as services for providing temporary accommodation and homestay; everyday services for the population; public catering services furnished through public catering outlets; retail trade; wholesale trade; commercial transportation of passengers by motor vehicles accommodating not more than 20 people (except in the case when this activity is performed for the needs of a body corporate or an individual businessman); commercial transportation by motor vehicles of cargoes exceeding 2.5 tonnes (except in the case when this activity is performed to meet own needs).
In addition, the draft law includes an exhaustive list of relevant information (dealing with the protection of the environment and human health and life).
To check the truth of information contained in notices and organise state monitoring (oversight) of the timeliness of their filing by applicants (changes, updates, additions), it is proposed to introduce in the Code of Administrative Offences appropriate norms of responsibility for bodies corporate (in the form of warnings or money penalties) for not telling the truth and for failing to file a notice on time.
Information contained in notices will be checked through scheduled state and municipal monitoring (oversight) inspections by way of spot checks that must meet well defined grounds and criteria.
The draft law introduces the notion of a check, which includes two types of checks: a documentary check and a field check. While previously a state monitoring (supervising) body could at its own discretion call any type of check, now the draft law specifies the possibility of organising and holding checks depending on the type of monitoring (oversight) conducted. A field check is held only in cases when a documentary check is not adequate to establish breaches of existing legislation.
The draft law made substantial changes to the ideology of unscheduled state and municipal monitoring (oversight) inspections of business entities. It established, for example, that unscheduled state and municipal monitoring (oversight) inspections of economic entities must be done only in cases of checking the following information received by state and municipal monitoring (oversight) bodies from citizens, bodies corporate, individual businessmen, bodies of state authority, local government bodies, or mass media:
- about a threat to the health or life of the public, pollution of the environment or emergency situations;
- about damage to the health or life of the public or to the environment.
The draft law excludes damage inflicted on property from the list of grounds for conducting unscheduled state and municipal monitoring (oversight) inspections, because proprietary rights can be protected in courts of law in accordance with civil legislation.
The draft law prohibits the duplication of monitoring by various monitoring and supervisory bodies with respect to the same requirements and in relation to one and the same entity.
In addition, it is proposed to extend the general principles of defence of the rights of bodies corporate and individual businessmen when conducting state and municipal monitoring (oversight) to all types of monitoring (oversight) inspections covered by the draft law, as well as to add the following provisions:
- several bodies may not check the same requirements;
- the total annual duration of monitoring checks for all bodies monitoring mini-businesses may not exceed 20 hours and those monitoring small businesses, 70 hours.
The implementation of the draft law will make individual businessmen (including small businesses) more active economically, especially in the innovatory and production spheres; lower the level of unwarranted administrative interference in business activity; reduce corruption in monitoring and supervisory inspections; reduce state and local budget costs to organise checks; and encourage citizens wishing to begin business activity.
Draft of the federal law
On Amending Certain Legislative Acts of the Russian Federation
Concerning the Replacement of Licensing
with Liability Insurance
This draft was prepared following an analysis of the provisions of federal legislation and of norm-setting legal acts of the Government regulating the licensing of individual types of activity. When determining the types of activity whose licensing is proposed to be replaced with liability insurance or financial guarantees, account was taken of the licensing requirements and conditions set to this particular type of activity and provisions of the federal laws regulating some types of activity. In addition, to assess the risks of business activity, members of the insurance and banking communities were invited and consultations held with representatives of licensing bodies and with business associations pursuing appropriate activities.
The resultant product is the draft federal law providing for the replacement of licensing with liability insurance for three groups of activities (transportation, use of explosion- and fire-risk facilities, and postal service).
As applied to licensed types of activity, the draft federal law provides for the replacement of licensing in six types of activity:
1. Carrying cargoes by inland waterways.
2. Handling dangerous cargoes on inland waterways.
3. Carrying cargoes by sea.
4. Handling dangerous cargoes at sea ports.
5. Towing cargoes by sea (except when this activity is performed to meet the own needs of a body corporate or an individual businessman).
6. Postal services.
The proposal to replace licensing with liability insurance presupposes the replacement of administrative barriers to market entry with requirements for financial backing of the activity, while preserving other current forms of state monitoring established by legislation regulating specific activities. With a view to making preparatory measures necessary for the replacement of licensing, it is proposed to establish a provision for delay envisaging the completion of the interim period by July 1, 2009. The draft law proposes to introduce norms regulating the procedure for liability insurance in the following legislative acts: the Code of Inland Water Transport of the Russian Federation, the Code of Merchant Shipping of the Russian Federation, and Federal Law No. 176-FZ of July 17, 1999 On Postal Communications.
Simultaneously with these norms, Federal Law No. 128-FZ of August 8, 2001 On Licensing Some Types of Activity will include norms repealing licensing for these types of activity. The draft law also simplifies the licence-extending procedure, for which purpose it introduces a provision on the simplified procedure which specifies that during the operation of the licence no gross violations of its requirements or conditions were noted, and/or no change took place by the moment of application, requiring a newly issued licence.
The adoption of this draft law is aimed to guarantee the compensation of third persons for damage when the requirements of Russian Federation legislation are violated in these spheres of activity.
The draft federal law On Amending
Certain Legislative Acts of the
Russian Federation
The present draft law was prepared in fulfilment of the Presidential Decree On Immediate Measures to Abolish Administrative Limitations on Business Activity.
The draft law introduces amendments to the following laws:
- the Law of the Russian Federation of April 18, 1991 On the Police (Law On the Police) to exclude extra-judicial rights exercised by interior bodies of the Russian Federation during checks of business activity entities;
- the Criminal Procedure Code of the Russian Federation (CPC of RF), in the part regulating the procedure for checking a report on a crime committed or to be committed;
- the Code of Administrative Offenses of the Russian Federation (CoAO of RF) in the part regulating the procedure for seizing documents constituting evidence in a case about an administrative offence;
- the Federal Law of August 12, 1995 On Operational Search Activity to specify the list of operational search measures taken by authorised bodies conducting operational search and their rights in conducting such operational search.
Some provisions of the Law On the Police vest the personnel of interior agencies with rights which can be exercised without observing the procedures stipulated by the CPC of RF or CoAO of RF.
The Law On the Police sets only general requirements to the exercise by the police of the specified rights, and does not contain clearly formulated procedures which could vest not only the police but also persons who are being investigated with certain rights and duties. In this context, the draft law introduces amendments to the Law On the Police, according to which activities aimed to stop offences and crimes are only possible when there is an appropriate ground for opening a case about an administrative violation or a criminal case, whereas officials of interior agencies, when conducting such activities, must be guided only by those procedures and the order of their application which are expressly provided for by the CPC of RF and CoAO of RF.
The draft law introduces amendments to Part 5 of Article 27.10 of CoAO of RF, which sets a procedure for and requirements to the seizure of items constituting weapons or instruments of an administrative offence and documents constituting evidence in a case about an administrative offence and discovered when inspecting the body corporate's territories, premises, goods, transport vehicles and other property, as well as relevant documents, except driver's licences, licences of a tractor or machine operator (tractor driver), and navigator's or pilot's certificates.
The draft law introduces the following amendments to the CPC of RF to regulate the procedure for checking a report about a crime committed or to be committed:
- when conducting a documentary check or an audit, it is permitted to seize documents or their copies provided an obligatory report is drawn up and an obligatory list of seized documents or their copies is made;
- when seizing documents to check a report about a crime, the presence of witnesses is obligatory;
- there is instituted the duty of an official checking a report about a crime to make copies of authentic documents subject to seizure and pass the copies of documents certified by this official where due;
- a five-day period is established for certified copies of documents to be passed to the person who had them seized;
- the period during which a decision must be taken on a report about a crime, if it is necessary to carry out documentary checks or audits, may be extended to 60 days but only with economic crimes.
The above-mentioned amendments are aimed to establish procedural rights and duties for interior agencies with a view to defending the rights of bodies corporate and individuals engaged in business activity when their activity is checked.
2. Amending Government Resolutions No. 371 of July 23, 2004 and No. 398 of July 30, 2004
The prepared Government draft resolution was drawn up with a view to streamlining and dividing the functions of the Federal Agency for Sea and Inland Water Transport (Rosmorrechflot) in appointing a port captain and the functions of the Federal Service for the Oversight of Transport (Rostransnadzor) in supervising the port captain's work of ensuring shipping safety and port order. Currently, in accordance with the earlier approved Regulations on the Federal Service for the Oversight of Transport (Rostransnadzor), the service is responsible for the organisational and methodical oversight and monitoring of port captains' activities in shipping safety and port order, as well as recommending to Rosmorrechflot candidates for appointment as a port captain.
The currently existing procedure for appointing and relieving port captains, due to the length of the procedure, is having an adverse effect on shipping safety and order at sea ports, because it is ruling out the possibility of appointing a port captain in an emergency and quickly. Also, organisational and methodical oversight of the port captain's activity is above all the duty of the employer, which by virtue of powers granted to it, is Rosmorrechflot. In view of the above, the draft resolution provides for deleting subparagraphs (a) and (d) of paragraph (2) from Government Resolution No. 398 of July 30, 2004 On Approving the Regulations on the Federal Service for the Oversight of Transport. Rosmorrechflot, in accordance with paragraph (9.7) of the Regulations on the Federal Agency for Sea and Inland Water Transport, as approved by Government Resolution No. 371 of July 23, 2004, will appoint to their positions and relieve from their positions heads of subordinate federal state institutions in the established procedure. Considering the special status of a sea port captain as established by Articles 74-76 of the Code of Merchant Shipping of the Russian Federation, under which the port captain reports directly to a federal executive body in the sphere of transport, the draft resolution proposes supplementing paragraph (9.7) of the Regulations on the Federal Agency for Sea and Inland Water Transport with the words "sea port captains".
Rostransnadzor's functions of organisational and methodological oversight of a port captain's activity and recommendation to Rosmorrechflot of candidates for appointment to the position of a sea port captain were fulfilled by Rostransnadzor officials responsible for monitoring and oversight in the sphere of sea transport. These officials, with Rostransnadzor now relieved of its functions for organisational and methodological oversight of a port captain's activity and recommending to Rosmorrechflot candidates for appointment to the position of a sea port captain, will continue to fulfil the functions of monitoring and oversight in the sphere of sea transport, including over the activities of sea port captains. So, in view of the labour intensity of the functions exempted from and remaining with Rostransnadzor, it appears impossible to reduce the establishment strength of Rostransnadzor.
3. Intergovernmental Economic Conference of Caspian Littoral Countries
On October 3-4, 2008, Astrakhan will host an Intergovernmental Economic Conference of Caspian Littoral Countries.
To prepare and hold it, an Organising Committee is being formed to ensure the coordination of efforts of federal executive bodies and bodies of authority in Russian Federation regions.
In view of the following issues scheduled for discussion: shipping cooperation, transport corridors, energy resources, fisheries, bioresources and environmental protection, the Conference is being prepared with the assistance of the Ministry of Economic Development (as the main sponsor), as well as the Foreign Ministry, Transport Ministry, Ministry of Energy, Ministry of Natural Resources and Environmental Protection, Ministry of Industry and Trade, Federal Agency for Fishery and the Astrakhan Regional Administration. Major Russian oil and gas companies may take part in the conference.
The Ministry of Economic Development will provide organisational and technical guidance for the Organising Committee's work.
July 11, 2008
Moscow
* Press releases by the Department of Press Service and Information contain the materials submitted by the executive federal bodies for discussion by the Presidium of the Government of the Russian Federation.