Resolution of August 17, 2016 No. 806. Rules have been approved for classifying the activities of legal entities and individual entrepreneurs and (or) the production facilities they use to a certain risk category or a certain class (category) of danger. In order to gradually develop the mechanism for transition to a risk-based model for certain types of state control, a list of types of control has been determined for which this approach will be applied until January 1, 2018. The decisions taken are aimed at the active use of risk assessment methods in order to reduce the overall administrative burden on business entities. At the same time, the introduction of a risk-based approach will improve the efficiency of control and supervisory activities.
Reference
Prepared by the Ministry of Economic Development of Russia in order to implement the Federal Law of July 13, 2015 No. 246-FZ “On Amendments to the Federal Law “On the Protection of the Rights of Legal Entities and Individual Entrepreneurs in the Exercise of State Control (Supervision) and Municipal Control”” (hereinafter referred to as the Federal Law No. 246-FZ).
Federal Law No. 246-FZ stipulates that from January 1, 2018, state control (supervision) bodies will apply a risk-based approach when organizing certain types of state control. These types of state control are determined by the Russian Government.
The risk-based approach is a method of organizing and conducting state control (supervision), in which the choice of intensity (form, duration, frequency) of control activities is determined by classifying the activities of a legal entity, individual entrepreneur and (or) production facilities used by them in such activities as a certain risk category or a certain hazard class.
The signed resolution approved the Rules for classifying the activities of legal entities and individual entrepreneurs and (or) the production facilities they use to a certain risk category or a certain class (category) of danger.
In order to gradually develop the mechanism for the transition to a risk-based model for certain types of state control, a list of types of state control (supervision) has been defined in which this approach will be applied until January 1, 2018. This list includes:
- federal state supervision in the field of communications;
- federal state sanitary and epidemiological surveillance, which is carried out by Rospotrebnadzor and the Federal Medical and Biological Agency;
- federal state fire supervision.
Amendments have been made to the provisions on federal state supervision in the field of communications, federal state sanitary and epidemiological supervision and federal state fire supervision, which, in particular, establish risk categories or hazard classes that are used in this type of control (supervision); criteria for classifying control objects to a certain risk category or a certain hazard class; frequency of scheduled inspections depending on the risk category or hazard class assigned to control objects.
The decisions taken are aimed at the active use of risk assessment methods in order to reduce the overall administrative burden on business entities.
At the same time, the introduction of a risk-based approach will improve the efficiency of control and supervisory activities.
Revisions of the document have been prepared with changes that have not entered into force
Federal Law of December 26, 2008 N 294-FZ (as amended on August 2, 2019) “On the protection of the rights of legal entities and individual entrepreneurs in the exercise of state control (supervision) and municipal control” (as amended and supplemented, entered into force With...Article 8.1. Application of a risk-based approach in organizing state control (supervision)
1. In order to optimally use labor, material and financial resources involved in the implementation of state control (supervision), reduce costs of legal entities, individual entrepreneurs and increase the effectiveness of their activities by state control (supervision) bodies when organizing certain types of state control (supervision), may apply a risk-based approach.
1.1. The list of types of federal state control (supervision), in relation to which a risk-based approach is applied, is determined by the Government of the Russian Federation.
1.2. The list of types of regional state control (supervision a), in respect of which a risk-based approach is applied, is established by the highest executive body of state power of the constituent entity of the Russian Federation. The Government of the Russian Federation has the right to determine the types of regional state control (supervision), in the organization of which a risk-based approach is mandatory.
2. The risk-based approach is a method of organizing and implementing state control (supervision), in which, in the cases provided for by this Federal Law, the choice of intensity (form, duration, frequency) of control measures, measures to prevent violations of mandatory requirements is determined by the attribution of the activities of the legal persons, individual entrepreneurs and (or) production facilities used by them in carrying out such activities to a certain risk category or a certain class (category) of danger.
(see text in the previous edition)
3. Attribution to a certain class (category) of hazard is carried out by the state control (supervision) body, taking into account the severity of the potential negative consequences of possible non-compliance by legal entities and individual entrepreneurs with mandatory requirements, and to a certain risk category - also taking into account the assessment of the likelihood of non-compliance with the relevant mandatory requirements.
4. The criteria for classifying the activities of legal entities, individual entrepreneurs and (or) the production facilities they use to a certain risk category or a certain class (category) of danger are determined by the Government of the Russian Federation, unless such criteria are established by federal law. The criteria for classifying the activities of legal entities, individual entrepreneurs and (or) production facilities used by them to a certain risk category or a certain class (category) of danger when organizing regional state control (supervision) are determined by the highest executive body of state power of a constituent entity of the Russian Federation, if such criteria are not established federal law or the Government of the Russian Federation. The Government of the Russian Federation has the right to determine general requirements for the criteria for classifying the activities of legal entities, individual entrepreneurs and (or) production facilities used by them to a certain risk category or a certain class (category) of danger when organizing regional state control (supervision), as well as to the procedure for their establishment .
(see text in the previous edition)
5. If the criteria for classifying the activities of legal entities, individual entrepreneurs and (or) the production facilities they use to a certain risk category provide for the state control (supervision) body to calculate the values of indicators used to assess the severity of the potential negative consequences of possible non-compliance with mandatory requirements, assessments of the likelihood of their non-compliance, methods for such calculations are approved by federal executive authorities exercising the functions of developing state policy and legal regulation in the relevant field of activity.
6. The rules for classifying the activities of legal entities, individual entrepreneurs and (or) production facilities used by them to a certain risk category, a certain class (category) of danger are determined by the Government of the Russian Federation. These rules must provide for the possibility of a legal entity or individual entrepreneur filing an application to change the risk category or hazard class (category) previously assigned to them.
7. If, in accordance with federal law, the classification of the activities of legal entities, individual entrepreneurs and (or) production facilities used by them to a certain risk category, a certain class (category) of danger is carried out within the framework of the powers exercised by the state control (supervision) body for state registration, issuance of a permit (special right) or other similar powers, the rules for classifying the activities of legal entities, individual entrepreneurs and (or) production facilities used by them to a certain risk category, a certain class (category) of danger are determined by a regulatory legal act establishing the procedure for the exercise of these powers such government body.
8. Regulations on the types of federal state control (supervision) may provide for the use by state control (supervision) bodies of indicators of the risk of violation of mandatory requirements as a basis for conducting unscheduled inspections. Indicators of the risk of violation of mandatory requirements are developed and approved by federal executive authorities that carry out the functions of developing and implementing state policy and legal regulation in the established field of activity, and are subject to posting on the Internet.
(see text in the previous edition)
Open the full text of the document
Formation of a clear database on controlled entities, linking risk assessment systems of different control and supervisory authorities and updating mandatory requirements - these are the key aspects of implementing a risk-oriented model of inspections outlined by the participants of the expert seminar organized on March 17 by the Analytical Center under the Government of the Russian Federation and under the Government of the Russian Federation on on behalf of the Russian Minister for Open Government, Mikhail Abyzov. The best practices presented at the seminar for applying the risk-based approach and assessing effectiveness in control and supervisory activities will soon be summarized by the expert and scientific community.
At the beginning of 2016, risk management systems were used to one degree or another in the implementation of 12 types of federal government control and supervision. The risk-based approach is being tested in five departments: the Ministry of Emergency Situations, Rostechnadzor, Rostrud, Rospotrebnadzor and the Federal Tax Service.
The Federal Tax Service, according to most experts, demonstrates the greatest success in terms of the transition to a risk-based model of control and supervision. According to the deputy head of the department, Daniil Egorov, it became necessary to develop a risk management model and identify priority objects for inspections by the Federal Tax Service when it became clear that the service was physically unable to cope with conducting on-site inspections of all taxpayers. The result of the transition to the new model was a significant reduction in the number of on-site inspections carried out annually - from 100 thousand in 2007 to 30 thousand in 2015.
The strategic management system is at the forefront. Only after we have clearly defined all the goals can we draw a risk map. The second is a system of indicators, a KPI system. If this system is not built, then there will be no synergy,” noted Daniil Egorov.
Important aspects of the transition to risk-based control, according to him, are the introduction of modern information systems, centralization of risk management, maximum disclosure of data and work with taxpayers, their advisory support and stimulation of voluntary payment of taxes.
Having created a powerful IT platform for performing the tax function, they were able to actually, rather than formally, implement a risk-based approach. Some regulatory authorities, paying tribute to fashion, say that they already have a risk management system. But, having carefully examined them, we understand that this is only a fragment of an integral mechanism,” noted Valentin Letunovsky, Deputy Head of the Control Department of the President of the Russian Federation.
Other departments began to implement the risk-based inspection model later, but they also managed to accumulate some experience. Thus, Rospotrebnadzor identified 9 territorial bodies to test the new approach and determined the procedure for forming a unified federal register of legal entities and individual entrepreneurs subject to their supervision. The register contains information that allows you to classify an object into a certain class of harm based on criteria such as the likelihood of violation of the law, the severity of the consequences of such violations and the size of the population exposed to the impact. Rospotrebnadzor classified about 54% of transport infrastructure facilities and 33% of industrial enterprises as low-risk objects that are removed from planned supervision. The inspection plan for 2016 was formed taking into account a risk-based approach, as a result, the number of scheduled inspections for 2016 decreased by 30% compared to last year, said Deputy Head of Rospotrebnadzor Mikhail Orlov.
When implementing a risk-based model, it is important to ensure the alignment of risk profiles between different departments responsible for related areas, emphasized Valentin Letunovsky. As an example, he cited Rospotrebnadzor, Rosselkhoznadzor and Rosprirodnadzor. The coordinating function should be assigned to a specific government agency - the chief methodologist, he believes.
Rostrud has identified 6 risk categories for supervised facilities, based on which the frequency of inspections is determined. The level of risk depends on the class of working conditions, industry, and scale of activity, explained deputy head of the department Mikhail Ivankov. According to him, Rostrud has begun to create a full-fledged system for managing control and supervisory activities; it is planned to be implemented in pilot mode by the end of the year. And the launch of the “Electronic Inspector” service - an internal control system at enterprises - allowed business entities to reduce the costs of inspections by 2.2 billion rubles.
Thanks to the pilot implementation of a risk-based approach, the Ministry of Emergency Situations managed to reduce the number of scheduled inspections from 173 thousand to 130 thousand per year. The main task at this stage is to improve the regulatory framework and eliminate morally and technically outdated standards, noted Sergei Voronov, deputy director of the department of supervisory activities and preventive work of the department. The main goal of improving control and supervisory activities is to reduce the number of fires and the number of deaths in them, he emphasized.
Representatives of the Federal Service for Financial Monitoring, the Federal Medical and Biological Agency, and Rostransnadzor also shared their experience in implementing a risk-based approach.
A risk-based model of control and supervisory activities is being introduced in pilot mode in the Ulyanovsk region. The main activities aimed at improving control and supervisory activities in the region and the transition to a risk-based model are enshrined in “Risk Control for a Comfortable and Safe Life and Effective Business” for 2015–2017. This document was developed by federal and regional experts together with the Government of the Russian Federation and the Russian Minister for Open Government Issues Mikhail Abyzov and approved in August 2015.
This “road map” is currently being implemented; a project office has been formed that is responsible for its implementation. It consists of representatives of executive authorities, public organizations that represent the interests of the business community, and commissioners for the protection of the rights of entrepreneurs,” said the acting. Minister of Economic Development of the Ulyanovsk Region Vadim Pavlov.
In the region, according to him, a register of mandatory requirements and a classifier of violations has been created, and the principle of “first a warning, then a fine” has been implemented for violations detected for the first time. In addition, based on our own experience in implementing a risk-based inspection model in the Ulyanovsk region, proposals have been prepared for a regional standard for control activities.
The study of best practices, according to the participants of the expert seminar, will make it possible to make adjustments to the federal project on state and municipal control, which is being developed by the Ministry of Economic Development with the involvement of the expert community on behalf of the President of the Russian Federation.
In early March, in his address to the Federal Assembly, Vladimir Putin stated that the control and supervision system must be transferred to a risk-based approach within two years. At the moment, a reform of control and supervisory activities is underway; it was approved in December 2016, the implementation period is until 2025.
What is this risk-based approach? We’ll tell you in a new Milknews text under the “In Simple Words” section.
The risk-based approach is used in control and supervisory activities and involves reducing the number of government inspections in areas where the risk of violations is lower. In this way, it should reduce the administrative burden on bona fide enterprises.
The essence of a risk-based approach in any area is to reduce risks: control in high-risk areas increases, and in safer areas it decreases or is absent. This allows you to take the necessary measures where necessary in a timely manner and significantly save resources. Thus, resources are distributed unevenly depending on risk, and this affects both the frequency and depth of inspections.
How does it work now?
At the moment, the risk-based approach is manifested in the fact that in relation to a small company, the supervisory authority may limit itself to the simplest risk assessment procedure, while a more comprehensive audit will be applied to large institutions.
The approach to risk management itself originally appeared in the financial sector, the activities of whose participants involve significant risks - banks, insurers, and investment funds seek to manage them to set prices for their services. Loan rates, the cost of securities and the size of insurance premiums directly depend on the risks that the company takes on.
Due to the initial similarity of the work of risk management departments in financial companies and internal control services, the risk-based approach was introduced first into traditional auditing, and then into other types of control and supervision, including government control.
At the same time, the system was simplified - if in the financial sector economic and mathematical models are used to calculate risks with an accuracy of tenths of a percent, then in other areas it is enough to divide risks into danger groups, which is what we now see in the activities of control departments.
Where is this stated?
The application of the approach in organizing state control is enshrined in Article 8.1 of the Federal Law of December 26, 2008 No. 294-FZ “On the protection of the rights of legal entities and individual entrepreneurs in the exercise of state control (supervision) and municipal control.”
Its main goal is the optimal use of labor, material and financial resources in the implementation of state control, reducing costs for those who are controlled and increasing the effectiveness of inspections.
To implement the approach in government supervision, the following classification of hazard levels is used:
- short,
- moderate,
- average,
- significant,
- high,
- extremely tall.
How does the approach change the work of departments?
Rosselkhoznadzor
In the activities of Rosselkhoznadzor, a risk-based approach is used in state land control, quarantine phytosanitary control, as well as veterinary supervision and veterinary control at the border.
In his report, Deputy Head of the Federal Service for Veterinary and Phytosanitary Surveillance Nikolai Vlasov notes that the agency was preparing for reform and, back in 2007, asked itself the question of optimizing control and supervisory activities, but could not avoid difficulties during the transition.
The first problem risk assessment criteria became: it was unclear in which case to apply random checks and in which to carry out total control.
Second problem access to data about organizations became available - before the reform there was no system for registering enterprises as a property complex, there was only a system for registering enterprises as subjects of economic activity. In this regard, the supervisory authority had a problem when a large agricultural holding with many sites (each of which applies separate control methods) had one TIN, and it was difficult to control the types of activities in the register.
Since September 2017, a risk-based approach has been used when inspecting legal entities and individual entrepreneurs in relation to agricultural land; criteria for classifying objects of state supervision to a certain risk category and the frequency of scheduled inspections depending on the assigned category are established. Three risk categories have been introduced: medium, moderate and low.
For land plots classified as medium risk, the frequency of scheduled inspections is established no more than once every three years. The frequency of scheduled inspections for land plots classified as moderate risk is no more than once every five years, and for sites classified as low risk, scheduled inspections are not carried out.
In 2017, Rosselkhoznadzor developed the above criteria, approved them, and also prepared a rationale for classifying objects into categories in accordance with the basic model for determining criteria and risk categories.
To develop the use of a risk-based approach in the field of land supervision, Rosselkhoznadzor is finalizing the Cerberus information system for creating and maintaining registers of supervised objects. This year, planned inspections of legal entities and individual entrepreneurs have already been formed taking into account risk criteria.
The department also uses the form of a checklist - a list of check questions presented to the person being inspected. Based on them, a legal entity or individual entrepreneur can independently, even before inspection, assess the compliance of an object with the hazard class.
The specified form of the checklist was approved by order of Rosselkhoznadzor dated September 18, 2017 No. 908 “On approval of the form of the checklist (list of checklists) used by officials of territorial bodies of the Federal Service for Veterinary and Phytosanitary Surveillance when conducting scheduled inspections as part of state land supervision,” order came into force in December 2017. From now on, Rosselkhoznadzor and its territorial departments use checklists in all scheduled inspections.
Rospotrebnadzor
Rospotrebnadzor was one of the first federal executive authorities in 2014 to begin implementing risk-based supervision. The number of inspections carried out by Rospotrebnadzor from 2008 to 2015 decreased by 4 times: from more than 1 million inspections to 265 thousand (the number of scheduled inspections decreased by 7.5 times, unscheduled inspections by 2.2 times).
The draft of the relevant government resolution was published on the Unified portal for posting draft legal acts.
In relation to those being inspected, the risk calculation takes into account:
- hygienic importance,
- law-abidingness (number of detected offenses),
- affected population
- volumes of products produced or services provided, etc.
- if the indicator of the potential risk of harm in property terms is more than 10 million rubles, then the organization or individual entrepreneur will have an extremely high risk;
- if the potential risk of harm is from 1 million rubles. up to 10 million rubles, - high risk;
- from 100 thousand rubles. up to 1 million rubles - significant risk
- from 10 thousand rubles. up to 100 thousand rubles, - average risk;
- from 1 thousand rub. up to 10 thousand rubles - moderate risk;
- less than 1 thousand rubles. - low risk.
- for the extremely high risk category - once per calendar year;
- for high risk - once every 2 years;
- for significant risk - once every 3 years;
- for medium risk - no more than once every 4 years;
- for moderate risk - no more than once every 6 years.
How does it work in the world?
The basic concept of implementing EPR in other countries of the world is no different. At the initial stage, a regulatory framework and supervision tools are developed, the development stage involves strategic planning and risk-oriented documents for all industries, and the implementation stage involves regular updating of the regulatory framework and evaluation of results.
Frequent problems faced by EU countries in the transition to a risk-based approach were an insufficiently developed regulatory framework and the simultaneous use of old and new regulatory documents, as well as an unclear strategy and non-risk-oriented planning.
The main idea of risk-based regulation is that everything cannot be regulated and controlled effectively; complete control is not economically feasible.
In accordance with the American pyramid of law enforcement practice, control over the implementation of mandatory requirements should be carried out as follows: upon the first violation, the enterprise is given a warning, a deadline is set for correcting the situation, and a second inspection is carried out. In the second case, there is a fine if the violation is not eliminated. In the event of a subsequent violation, a temporary suspension of activities is carried out, and then the facility or enterprise is closed.
Denmark
Using the example of Denmark, International Finance Corporation (IFC) expert Gordana Ristic explained that to find the source of problems in the control and supervision activities of the food market, a traceability chain “from farm to counter” is used, and, if problems are identified in one of the links in the chain, control supervisors should contact the responsible party to conduct an inspection.
Control is also carried out according to 5 hazard groups, but in Denmark there are also so-called. elite groups - the standard frequency of inspections is 0.5 per year (i.e. once every 2 years), and if the last 4 reports with inspection results did not provide for penalties, the company receives elite status and the number of inspections relative to it is reduced (from 5 to 3 in the highest risk group and from 3 to 1 in the high risk group). In addition, a nice bonus for the company is that it can use its elite status badge in marketing, such as advertising or branding.
In November 2017, the World Bank held a seminar on the risk-based approach, during the seminar, Professor Gordana Ristic presented a report on risk indicators for sanitary and epidemiological surveillance.
First of all, effectiveness depends on the correct analysis of real threats that arise at the objects being inspected. For example, food production must have different levels of risk depending on the methods of processing the food and the potential danger to the consumer.
“Two identical businesses will have different risks due to different products. Fresh milk is more dangerous than pasteurized milk,” Ristic said.
According to international practice, administrative measures applied by supervisory authorities should be a flexible instrument of influence. Enterprises should be given a certain time to eliminate violations and then, in case of further non-compliance, be punished.
The expert also pointed out the importance of training inspectors. According to Ristic, “a modern inspector must be aware of good practices, skills, technologies. During the audit, he must evaluate both the infrastructure and the processes.”
Regarding checklists, the expert emphasized that checklists should be a convenient tool for identifying risks, and not simply copying legal norms. How processes occur in an enterprise is more important than a formal assessment of the infrastructure.
In general, in the practice of implementing EPR in the EU, they came to the conclusion that inspection control can stimulate companies, but can also have the opposite effect - lengthy and frequent inspections for the purpose of issuing a fine cannot improve the company’s performance.
Ratings
In general, of course, from the outside, the reform looks like a positive change that makes life easier for business. Deputy Minister of Economic Development, one of the initiators of the transition to EPR, Savva Shipov, said at the Russian Economic Forum that the decision to conduct an inspection should not be made by a specific inspector, but based on the degree of risk, Shipov explained.
“For example, a complaint is received about some violations. It is necessary to assess what requirements are violated, how much danger the violation poses - causing harm to life, health, property, how much you can trust the source of information, and so on. Therefore, we believe that unscheduled inspections will gradually should switch to a risk-based approach, and if indicators are triggered that the risk is really high, then an inspection is carried out, if not, then an inspection is not needed,” said Shipov.
However, the reform caused different reactions among representatives of business and consumer societies.
Dmitry Yanin, Chairman of the Board of the International Confederation of Consumer Societies (ConfOP), in a conversation with Milknews, criticized the ongoing reform and associated the changes with a reluctance to finance control bodies.
“In my opinion, the CND reform was initiated out of despair. This is due to the state’s reluctance to finance effective supervision, reluctance to provide compensation packages to supervisory authorities, salaries and social guarantees to inspectors.
The initiators of the reform proceed from the fact that, in their opinion, any inspector is a bribe-taker and corrupt official, and an inspector cannot work honestly for 25-30 thousand rubles. Therefore, instead of initiating an increase in the level of salaries for employees and monitoring the adequacy of departmental spending, we have been implementing a strategy for more than 10 years to complicate the activities of control and supervisory authorities.
The main document - the law on the control of legal entities in the implementation of CND - has actually reduced the effectiveness of control and supervisory measures. In no EU country have we found a practice where an organization is warned about an unscheduled inspection 24 hours in advance - there are no such restrictions anywhere, because after a warning it is ineffective to send government officials for an inspection. Official reformers, who initiated it together with big business and supervisory authorities, are quite loyal to the meager fines for consumer deception and falsification; we do not have very high fines for violations of technical regulations. Therefore, the trend continues, the quality and number of supervisory agencies will decrease, and business will continue to write the rules of the game, based on the conditions “don’t interfere with doing what you want.”
I am calm about other changes, such as ranking and cosmetic changes in legislation, the key problem is underfunding and low level of fines, problems in legislation, the inability of consumers to defend their interests en masse through the courts (for example, in the USA there are class actions filed by consumer societies , in some countries, regulatory authorities can take legal action not only to remove products from shelves, but also from the entire market, including the payment of compensation).”
First Vice President of OPORA RUSSIA Vladislav Korochkin told Milknews that business has an absolutely positive attitude towards the reform and “participates in it in the most direct way.” According to Korochkin, the advantages are the restructuring of the relationships between enterprises (all of them, not just businesses) from an outdated paradigm, largely imposed by external agents, to a modern, more effective and less burdensome one for both the state and society. The disadvantages are that the reform is not taking place as quickly as necessary.
“The country is still losing the 2-3% additional GDP growth that, according to estimates, the new system could provide. How will the transition to a risk-based approach make life easier for entrepreneurs? Very seriously. This includes a reduction in the number of expensive scheduled inspections, and getting rid of many “exotic” and paradoxical mandatory requirements, which, apart from doubts about the adequacy of the state representatives presenting them, did not give anything,” said Korochkin.
When asked whether a significant reduction in the number of inspections is due to the state’s reluctance to finance supervision, the expert explained that effective control can (and should) be built without routine inspections by government agencies at all. “The world's best practices clearly show this. Especially today, when there are thousands of ways to ensure control using a variety of technical devices. In addition, there is the practice of insurance and the work of Self-Regulatory Organizations. Quite positive.”