"Строительство является тем локомотивом, который выводит страну из зоны кризисных явлений..."
Президент Ассоциации строителей России Н.П. Кошман
Implementation process of technical regulation in the construction industry taking into account the amendment made into the Federal Law “On Technical Regulation”; and further activities aimed at its improvement
The amendments into the Federal Law No. 184-FZ “On Technical Regulation” have been made.
Russian President V. Putin signed the Federal Law No. 65-FZ “On making amendments into the Federal Law “On Technical Regulation” on the 1st of May, 2007. The law was adopted by the State Duma on the 6st of April, 2007 and adopted by the Federation Council on the 18th of April, 2007. This is the much awaited event.
The amendments to the law are aimed at enhancing the efficiency of its implementation and adjusting it to the international legislation in the sphere of technical regulation, which is vitally important in view of Russia’s joining the World Trade Organization. Basically, the law indicates the attitude adopted by the Russian Union of Industrialists and Entrepreneurs, the Federation of Independent Trade Unions of Russia, “Opora Rossii” Association, the Union of Oil and Gas Industrialists of the Russian Federation, the Russian Builders Union, the Builders Association of Russia, the Russian Association of Car Manufacturers, the Association of Car Engineers, the representatives of ferrous metallurgy, of Russia’s major corporations and many other industrial unions and enterprises.
After the amendments are made the reform of technical regulation will begin; it is necessary to adjust Russia’s standards to the international standards and the current level of production and service rendering in the construction industry.
While implementing the reform of technical regulation it is necessary to use the integrated approach towards it, to consider and analyze all legal and technical aspects.
The necessity to deregulate the economy, including that of the construction industry, is due to the necessity to achieve the political objectives of the Russian Government, as well as to Russia’s international obligations:
- “the road map” related to the common economic space adopted by Russia’s President in May, 2005;
- the Agreement between Russia and the EU, art.55 “On harmonization of legislations”;
- the WTO Agreement on Technical Barriers to Trade related to the use of international standards as a basis for technical regulations;
- Recommendations for the governments of the Economic Commission for Europe and the UNO related for the use of references to national, regional, or, preferably, to international standards in legislative documents.
The Federal Law “On Technical Regulation” adopted on the 27th of December, 2002, is the basic document, which specifies the procedure of economic deregulation.
Unfortunately, the original law did not reflect the peculiarities of the construction industry; it had been elaborated by the persons, who had nothing to do with the construction and did not wish to take into account the opinions of the representatives of the construction industry and its scientific and industrial sectors.
The law utterly disregarded the European experience in technical regulation, which is acknowledged in the world, and was used by China and former Soviet republics, i.e., Kazakhstan, Kyrgyzstan, Ukraine, Belorussia when elaborating their “technical legislations”.
The systemic errors found in the Law hampered the process of implementing technical regulation in the construction and other industries.
For the 4-year period of the operation of the law “On Technical Regulation”, i.e., for more than the half of the reform period no technical regulations were adopted, and the regulatory base, which had existed before the adoption of the aforesaid law and had been acknowledged one of the best bases in the world, was disrupted.
Thus, the adoption of the aforesaid law resulted in legal vacuum in the construction industry. There are no technical regulations. Construction regulations and standards are considered illegal.
The law did not ensure construction safety.
The general technical regulation determined by the Law was named “On safe use of buildings, structures and facilities and the neighboring territories”. Thus, in accordance with the requirements of the Law there is no need to ensure safety of buildings, structures and facilities at the stage of research activities, designing, construction works, but only at the stage of using them.
According to the law the requirements of technical regulations were considered direct norms. In order to make alterations to the requirements it is necessary to carry out the procedure of making alterations to the technical regulations, i.e., a time-consuming procedure of making amendments into the Federal law.
The Law prohibited conducting the State examination of the outcomes of engineering activities, project documentation, exercising State supervision over construction activities, for according to the Law the State supervision is exercised exclusively when the production is traded.
The Law does not envisage establishing notified bodies authorized by the state, which are responsible for determining the degree of the production compliance with technical regulations.
The amendments made on the basis of the Federal law No.65-FZ dated May, the 1st, 2007, provide the following alterations. Let us consider the essence of the basic amendments related to the construction industry:
Article 1 and other Articles.
The requirements related to the processes regulated by the Law have been specified; at the present moment the Law regulates only production processes at the stage of design (including research work), production, construction, assembling, setting-up.
The requirements related to labor safety have been excluded.
The notion “Instruction Handbook” have been introduced, i.e., the document on standardization, which contains technical regulations and (or) description of design processes (including research work), production, construction, assembling, setting-up, maintenance, storage, transportation, realization and utilization of production. The document is applied on a voluntary basis.
This document has legalized construction regulations and standards, sanitary regulations and norms, industry building code…
The practice of entrusting the same functions to two and more state bodies responsible for supervising the degree of compliance with the requirements of technical regulations has been considered unacceptable.
The new revised version of the article, including the name, has been elaborated.
Technical regulations related to the facilities with the specified requirements concerning nuclear and radiation security in the sphere of atomic power use have been complemented.
It has also been specified that along with the requirements of technical regulations the following requirements are obligatory for defense production: those imposed by state customers, federal executive bodies responsible for ensuring security, defense, foreign intelligence, counteraction to technical reconnaissance, technical protection of information, state regulation of the security when employing atomic power and (or) by government contracts.
Characteristic features of standardization and the process of assessing the compliance degree of defense production are determined by the Government of the Russian Federation.
The provision stating that the compulsory requirements specified in technical regulations are exhaustive, has been excluded. This makes it possible to refer to standards, instruction handbooks, in technical regulations. The aforesaid standards and instruction handbooks shall serve as the evidential base for the degree of compliance with technical regulations.
It has been determined that international standards should be used implicitly or partially as a basis for elaborating sets of technical regulations except particular cases when the use of international standards is considered impossible.
National standards can also be used for elaborating technical regulations, either implicitly or partially.
The provision has been introduced stating that the Government of the Russian Federation approves a set of national standards, containing the rules and ways of conducting research work and measuring activities required for the use and execution of the approved technical regulation and assessing the compliance degree until the technical regulations come into effect.
It has been acknowledged void.
This amendment resulted in termination of the practice of subdividing technical regulations into common and area-specific, exclusion of the list of general technical regulations, including the one named “On safe use of buildings, structures and facilities and the neighboring territories”.
The procedure of elaborating and approving technical regulations has been altered; it is envisaged that technical regulations can be approved either via the Federal law or the decree by the Government of the Russian Federation.
The list of high priority technical regulations to be adopted until January, the 1st, 2010, including the technical regulation “On safety of buildings and structures” has been determined.
The period for preparing the report concerning the draft of technical regulation by the Government of the Russian Federation for the State Dume has been prolongated: for consideration by the State Duma in the first reading – up to 90 days, for the second reading – up to 60 days. At that it has been agreed that the State Duma can consider the draft of technical regulation without taking into account the report by the Government of the Russian Federation in case the report was not submitted within the specified period.
The list of documents related to standardization has been complemented with the paragraph named “instruction handbooks”.
The amendment has been made that until the technical regulation comes into effect the national standardization body approves and announces the list of national standards and (or) instruction handbooks, the voluntary use of which results in the full compliance with the approved technical regulation. The national standards and (or) instruction handbooks may contain the requirements of technical regulations; in order to meet these requirements the national standards and (or) instruction handbooks are used on a voluntary basis.
Articles 24, 26:
The procedure of issuing, prolongating and maintaining unified registers of compliance declarations and conformity certificates.
It has been complemented with the paragraph specifying the rights of the state supervisory bodies for issuing instructions to suspend realization of the products, which do not meet the requirements of technical regulations and to inform the consumers of this fact via mass media. The right of manufacturers to appeal against the aforesaid steps of the state supervisory bodies in accordance with established procedure has also been specified.
It specifies the procedure of financing out of the federal budget the activities aimed at implementing the provisions of the given federal law.
It has been complemented with the provision establishing the right of the Government of the Russian Federation and the federal executive bodies to make amendments to the regulatory legal acts until the technical regulations come into effect, which are used until the respective technical regulations come into effect.
It is important to note that further steps must be implemented, which would be aimed at improving the Federal law “On technical regulation” in its section related to determining the functions and authorities of the state supervisory bodies and introducing the institution of notified (authorized) bodies for assessing the compliance degree in the Russian Federation, as well as to implementing the opportunity to refer indirectly to national standards and instruction handbooks, as the made amendments lack the following:
•item.2 of Article 33 of the Federal law “On technical regulation” remained unaltered – “the state control over the compliance degree with the technical regulations is exercised exclusively when the production is traded”.
•the institutionalization of the notified (authorized) bodies for assessing the compliance degree has not been specified.
•the opportunity to indirectly refer to the standards and instruction handbooks meeting the requirements of technical regulations after they had been approved by the Technical Committees (Rostekhregulirovanie) and published by official mass media, has not been specified.
The Builders Association of Russia expressed its opinion at different levels specifying that Russia’s joining the WTO should take place after elaborating the Russian “technical legislation”, which would require reconsideration of the reform deadline, at present set up to 2010.
In case the Russian “technical regulation” is not elaborated before Russia’s joining the WTO, Russia’s enterprises will have to act in accordance with the competitors’ laws allowing them to penetrate the Russian market.