Monitoring compliance with technical regulations. Control (supervision) over compliance with the requirements of technical regulations

Essence, content, goals, principles and objectives of technical regulation. Technical regulations, their content and application. The procedure for development, adoption, amendment and cancellation of technical regulations. Adopted technical regulations of the Customs Union.

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[Law on Technical Regulation] [Chapter 6] [Article 32]

1. State control (supervision) over compliance with the requirements of technical regulations is carried out by federal executive authorities, executive authorities of constituent entities of the Russian Federation, state institutions subordinate to them authorized to conduct state control (supervision) in accordance with the legislation of the Russian Federation (hereinafter referred to as state control authorities (supervision)).

2. State control (supervision) over compliance with the requirements of technical regulations is carried out by officials of state control (supervision) bodies in the manner established by the legislation of the Russian Federation.

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1 comment on the entry “Article 32 Law on Technical Regulation. Bodies of state control (supervision) over compliance with the requirements of technical regulations”

Article 32. State control (supervision) bodies over compliance with the requirements of technical regulations
Commentary on Article 32
1. One of the most important components of the technical regulation reform is the creation of a new system of state control (supervision) over compliance with mandatory requirements for products and related processes. The law attaches special importance to state control (supervision), enshrining it in paragraph 3 of Art. 7 as the main form of conformity assessment.
It should be noted that the Law, regulating issues of state control (supervision), does not distinguish between the concepts of “control” and “supervision,” thereby implying their identity. Indeed, it is sometimes difficult to discern specific differences between them, since both control and supervisory activities are connected by a common purpose - compliance with the rule of law. However, the absolute identification of control and supervision cannot be considered correct, since in law enforcement practice they have an independent meaning and their own content. In addition, control and supervisory authorities often have different powers in relation to the entities being inspected.
Among the characteristic features of control are the following: the possibility of its implementation in relation to subordinate bodies; the right of regulatory authorities to influence the operational and economic activities of the controlled object; carrying out an assessment of the activities of the controlled object both from the point of view of legality and in terms of expediency.
Supervision as a way to ensure the rule of law consists in the constant, systematic monitoring of authorized state bodies over the activities of bodies or persons supervised by them in order to identify violations of the law. Supervision is characterized by the absence of relationships of subordination between supervisory authorities and supervised ones and the assessment of the activities of the supervised object only for the purpose of legality. In addition, during supervision, interference in the operational and economic activities of the supervised object is not allowed.
Control, in contrast to supervision carried out exclusively by government bodies, can be not only state, but also departmental, industrial, public - depending on the subjects on whose behalf the control is carried out and the scope of control.
It seems that as technical regulations are written and the system of state control (supervision) in the field of technical regulation is streamlined, the functions of control and supervision will be transferred to various government bodies. However, until such powers are delineated, control and supervisory activities in the area under consideration are perceived as a single whole.
According to the provisions of the commented part of the article, the system of state control (supervision) bodies includes: federal executive authorities, executive authorities of the constituent entities of the Russian Federation, state institutions subordinate to them, authorized to conduct state control (supervision) in accordance with the legislation of the Russian Federation.
A special place in the system of control and supervisory bodies is occupied by Rostekhregulirovanie, which exercises state control (supervision) over compliance with the mandatory requirements of technical regulations before the Government of the Russian Federation makes a decision to transfer these functions to other federal executive authorities. The powers of Rostekhregulirovaniya in the field of control and supervision also include:
collection and processing of information about cases of harm caused by violation of the requirements of technical regulations;
informing purchasers, manufacturers and sellers on compliance with technical regulations.
The organizational structure of the system of control and supervisory bodies of Rostechregulirovanie includes seven interregional territorial departments (MTU) and 86 FGU TsSM, located in all constituent entities of the Russian Federation. In order to increase efficiency and improve the organization and conduct of control and supervisory activities aimed at protecting the consumer market from dangerous products and ensuring uniformity of measurements, Rostekhregulirovanie annually approves a comprehensive plan for control and supervisory activities.
Based on the results of state supervision, Rostekhregulirovanie monitors the state of affairs related to product safety and ensuring the uniformity of measurements. Prepares and presents generalized materials in the established field of activity to the Ministry of Industry and Energy of Russia, federal executive authorities, representatives of the President of the Russian Federation in federal districts and administrations of constituent entities of the Russian Federation.
2. Defining the system of control and supervisory bodies in paragraph one of this article, in the commented part the Law provides that state control (supervision) over compliance with the requirements of technical regulations is carried out by officials of these bodies in the manner established by the legislation of the Russian Federation.
Currently, the general procedure for carrying out control measures carried out by state control (supervision) bodies is established by the Federal Law “On the protection of the rights of legal entities and individual entrepreneurs during state control (supervision)”. This Law regulates the responsibilities of state control (supervision) bodies and their officials when carrying out control measures, the rights of legal entities and individual entrepreneurs when conducting state control (supervision), as well as measures to protect their rights and legitimate interests. It should be noted that the provisions of this Law do not apply to relations related to the conduct of currency, budget, tax and other types of control listed in paragraph 3 of Art. 1 of the Law.
In accordance with Art. 7 of the said Law, all control measures are carried out on the basis of orders (orders) of state control (supervision) bodies, and only by those officials who are indicated in such order (order). The duration of the control activity should not exceed one month. State control (supervision) bodies, within their competence, carry out planned control measures in order to verify compliance by legal entities and individual entrepreneurs with mandatory requirements. In relation to one legal entity or individual entrepreneur, each state control (supervision) body can carry out a planned control event no more than once every two years. In relation to a small business entity - no earlier than three years from the date of its state registration.
In addition to scheduled inspections, unscheduled inspections can also be carried out, the subject of which is to monitor the implementation of orders to eliminate identified violations. The activities of a legal entity or individual entrepreneur are subject to an unscheduled inspection if violations of mandatory requirements are identified as a result of a planned monitoring activity.
For example, in Rostekhregulirovanie, control and supervisory activities are ensured by conducting scheduled and unscheduled spot checks, the basis for which is an analysis of the state of affairs with product safety in the consumer market. State supervision is carried out using instrumental control methods, i.e. testing selected product samples in accredited testing laboratories (centers). Moreover, in the case of negative test results, all costs associated with carrying out this procedure are borne by the inspected business entity, in the case of positive results - by the territorial body of Rostekhregulirovaniya.
In addition to the above-mentioned legislative act, there are a number of by-laws, the provisions of which regulate issues of state control (supervision), including:
Decree of the Government of the Russian Federation dated 04.08.2005 N 491 “On measures to ensure state control over the quality and safety of grain, feed and components for their production, as well as by-products of grain processing”;
Decree of the Government of the Russian Federation of May 16, 2003 N 287, which approved the Regulations on the organization and implementation of state control and supervision in the field of standardization, ensuring the uniformity of measurements and mandatory certification;
Decree of the Government of the Russian Federation of December 21, 2000 N 987 “On state supervision and control in the field of ensuring the quality and safety of food products”;
Resolution of the State Standard of the Russian Federation dated 01.09.2003 N 99 “On approval of the Procedure for carrying out state control and supervision by the State Committee of the Russian Federation for Standardization and Metrology.”
The provisions of the named regulatory legal acts in accordance with paragraph 2 of Art. 4 of the Law are applied to the extent that does not contradict it. It should be noted that the Law provides for the implementation of state supervision (control) only in terms of compliance by business entities with the mandatory requirements of technical regulations. And it will be so as the relevant technical regulations come into force. In the meantime, for the transition period, state control (supervision) includes:
a) state control and supervision of compliance with the mandatory requirements of regulatory documents of the State Standard of Russia (state and interstate standards adopted before 07/01/2003) for products in terms of mandatory requirements that ensure the achievement of the following goals before the entry into force of the relevant technical regulations:
protecting the life or health of citizens, property of individuals or legal entities, state or municipal property;
protection of the environment, life or health of animals and plants;
prevention of actions that mislead acquirers;
b) state control and supervision of compliance with mandatory requirements for products subject to mandatory confirmation of conformity (certification, declaration) (see commentary to Article 33).
According to the explanations of the State Standard of the Russian Federation, set out in the information letter dated 08.08.2003 N GE-110-28/2864, a check can be carried out for compliance by the manufacturer (performer, seller, person performing the functions of a foreign manufacturer) with the current regulatory legal documents establishing the rules (procedures, order ) carrying out mandatory confirmation of product conformity, as well as regulatory legal documents of certification systems for homogeneous groups of products of the GOST R certification system. The mandatory requirements of these documents are established by the letter of the State Standard of Russia dated June 27, 2003 N GE-1100-28/2308 “On the application of regulatory documents in the field of mandatory confirmation of compliance."