The problems of state registration of amusement parks in the Russia and the implementation of control (supervision) over the activities of their operators

Lomov Ivan Sergeevich Postgraduate student; Department of Financial Law, Constitutional, Civil and Administrative Proceedings; Southwestern State University 305040, Russia, Kursk region, Kursk, ul. Fifty Years of October, 94 m9sowow@mail.ru Other publications by this author

The concept of an attraction in the legislation of the Russian Federation appeared quite recently and in accordance with the Technical Regulation of the EEC "On the safety of attractions" (TR EAEU 038/2016) (hereinafter – the Technical Regulation) An attraction is understood to be equipment that is designed to entertain passengers while driving, including biomechanical effects {1}. In order to determine the degree of danger of attractions, the legislator divides them into 4 types depending on the degree of potential biomechanical risk (RB-1, RB-2, RB-3, RB-4). The definition is based on the following criteria:

- climbing or descending from a height;

- moving at a certain speed;

- ascent or descent in a chair with a tilt (forward, backward, sideways).

The degrees of biomechanical risks are justified by statistical data on the consequences of injuries when people fall from a height.

It should be noted that there is no regulatory legal regulation of attractions classified as RB-4 (negligible risk) due to the lack of need for such regulation caused by the insignificance of the risk of harm to health and the lack of probability of death {2}. The rules for the operation of such attractions remain at the GOST level.

In this regard, the technical regulations apply exclusively to attractions classified as high, medium and low (RB-1, RB-2, RB-3, respectively) degrees of biomechanical impact {3}.

In order to systematize the legislator, the following types and types of the above-mentioned attractions are defined in the Technical Regulations:

The typology of attractions is based on the purpose of the attraction laid down by the manufacturer, the principle of its operation, as well as the necessary requirements for safe assembly, installation and safe operation of the attraction.

It should be noted that the provisions of the Technical Regulations do not apply to rides manufactured and put into operation before its entry into force. The start date of the Technical Regulations is April 18, 2018. From this date, all rides imported from abroad and manufactured on the territory of the EAC must comply with the requirements of the technical regulations.

The document confirming such compliance is a declaration of conformity (for RB-2, RB-3 attractions) and a certificate of conformity (for RB-1 attractions).

Attractions put into operation before the entry into force of the requirements of the Technical Regulations must comply with the Requirements for the technical condition and operation of attractions approved by Decree of the Government of the Russian Federation No. 1732 dated 12/20/2019 (hereinafter Requirements). These Requirements became effective on January 4, 2020.

Thus, all the attractions operated on the territory of the Russian Federation can be conditionally divided into two groups:

- manufactured and put into operation before the entry into force of the Technical Regulations, subject to the requirements of federal legislation;

- manufactured and put into operation after the entry into force of the Technical Regulations, subject to the requirements of international legislation.

In the context of the development of regulatory legal regulation, such a division seems logical and only emphasizes the transition period, demonstrating "before" regulation and "after" it.

From our point of view, the adoption and entry into force of the Technical Regulations is an important step that determines the development of the field, laying down the basic concepts, classification, and general requirements for attractions by types and types.

There is a slight lag in the adoption and entry into force of the Requirements, since a situation has been created in which, from April 18, 2018 to January 4, 2020, there was completely no regulatory legal regulation of the requirements for the safe operation of attractions produced and put into operation before the entry into force of the Technical Regulations.

Such a delay is not a problem, since the requirements contained in the Technical Regulations at that time were not verifiable and controlled, since there were no mechanisms of administrative and public impact on legal entities and individual entrepreneurs (hereinafter referred to as amusement ride operators) in the legislation.

Scientific research on the safe operation of attractions, especially legal aspects of regulatory legal regulation of operators' activities, as well as control (supervision) of their activities by public authorities, has been absent and is missing in due quantity. The degree of scientific sophistication of this topic is extremely low, which is why this study has the character of a pioneer in this field.

The Technical Regulations and the Requirements adopted after them had a list of mandatory norms, compliance with which ensures safety during the operation of attractions, guarantees the minimization of accidents.

The Government of the Russian Federation, realizing the objective need to create a mechanism to ensure compliance with existing requirements, has begun work in the following areas:

- creation of rules for state registration and accounting of attractions of low, medium and high degree of biomechanical impact;

- the organization of a new public authority or the granting of the current authority for the state registration and accounting of attractions, as well as control (supervision) over the fulfillment by operators of mandatory safety requirements contained in existing legislation;

- organization of a mechanism for bringing violators of mandatory safety requirements to administrative responsibility by the authorized body as a measure stimulating the obligation to comply with them.

In accordance with the Regulations on State Supervision of the Technical condition of Self-propelled Machines and Other Types of Equipment in the Russian Federation, approved by Decree of the Government of the Russian Federation dated 12.12.1993 No. 1291, as well as the Rules for Regional State Supervision in the field of technical condition and Operation of self-propelled machines and Other Types of equipment, attractions, approved by Decree of the Government of the Russian Federation dated 09/23/2020 No. 1540, the bodies responsible for the state registration and accounting of attractions, controlling the fulfillment by operators of mandatory safety requirements, became the bodies of Gostekhnadzor of the Russian Federation, which are public authorities at the level of the subject.

Following this, the Government of the Russian Federation developed and adopted the Rules for the State Registration of Attractions, approved by Decree of the Government of the Russian Federation No. 1939 dated 12/30/2019 (hereinafter referred to as the Rules).

Thus, it was only by the beginning of 2020 that a springboard for law enforcement activities in the field of safe operation of attractions was prepared in the Russian Federation. From that moment, in accordance with the Rules, the mass activity of Gostekhnadzor bodies for state registration and accounting of previously commissioned attractions began.

In accordance with the Rules, the state registration of previously commissioned attractions took place in several stages:

- with a high degree of potential biomechanical risk (RB-1) - before the expiration of 24 months from the date of entry into force of the Rules;

with an average degree of potential biomechanical risk (RB-2) - before the expiration of 27 months from the date of entry into force of the Rules;

with a low degree of potential biomechanical risk (RB-3) - before the expiration of 30 months from the date of entry into force of the Rules.

The legislator deliberately built a "soft" transition period, which allowed operators and state Technical Supervision authorities to conduct state registration carefully, plunging into a new sphere.

The new Rules require the operator of the attraction to provide an expanded list of documents, including regulatory and technical documentation, as well as a document of particular importance - an act of assessment of the technical condition of the attraction (technical inspection) (hereinafter referred to as the act of maintenance) confirming the compliance of the attraction with the list of requirements for the technical condition and operation of attractions, issued by a specialized organization after completion of installation (assembly, installation) of an attraction, from the date of issue of which no more than 12 months have passed.

From this moment on, each operator of the attraction registered with the State Technical Supervision authority is obliged to provide an act of maintenance on an annual basis. Its legal nature is simple. It is he who confirms to the public authority the serviceability of the attraction, as well as the presence or absence of defects. On the basis of the act, the Gostekhnadzor body is obliged either to give a public act of approval for the further operation of the attraction or to prohibit its operation with the corresponding suspension of state registration for the period of elimination of the causes of the malfunction.

At the same time, the Gostekhnadzor body has the right to carry out trial launches of attractions both during the state registration itself and during its renewal. The essence of the trial run is to verify by the State Technical Supervision authority the basic mandatory requirements contained in the Technical Regulations.

Thus, the Gostekhnadzor body has the right to verify the requirements during state registration, as well as on an annual basis, receiving a maintenance certificate from the operators.

The rules also allow that if the Gostekhnadzor body detects non-compliance of an attraction with the requirements of Technical Regulations during the implementation of regional state control (supervision), its state registration is suspended.

However, the mechanism for conducting control (supervisory) measures both at the time of 2020 (the beginning of the work of this sphere) and today is not workable.

With the adoption of the Federal Law "On State Control (Supervision) and Municipal Control in the Russian Federation" dated 07/31/2020 No. 248-FZ (hereinafter referred to as the Law), control (supervisory) activities in the Russian Federation were radically reformed {4}. And the changes that came with the adoption of the decree of the Government of the Russian Federation dated 03/10/2022 No. 336 "On the specifics of the organization and implementation of State control (supervision), municipal control", almost completely paralyzed all control (supervisory) activities in the country, excluding the vast majority of planned and unscheduled inspections {5}.

The law establishes that the implementation of regional control (supervision) is impossible without securing the relevant powers by federal law {6}.

There is no such federal law in this area and, accordingly, the State Technical Supervision authorities do not have independent powers to carry out control (supervisory) measures within the framework of the Law. Only a small number of subjects currently carry out such control (supervision) by adopting an appropriate law at the level of the subject. The rest of the vast majority of Gostekhnadzor bodies exercise their powers of control (supervision) through interaction with the Prosecutor's Office of the Russian Federation.

We see this approach as unacceptable. From our point of view, the Gostekhnadzor body, being a narrowly focused specialized executive body of the subject, having a staff of qualified inspection engineers, has the right to independently carry out control (supervisory) activities {7}. It will result in making decisions on suspending the operation of attractions, issuing instructions to operators, as well as bringing perpetrators to administrative responsibility.

The solution to this problem lies on the surface and requires the development and adoption of a multidisciplinary law "On attractions", the draft of which will need to include the following provisions:

1. Basic concepts (improvement of the conceptual framework presented in the Technical Regulations);

2. Legal regulation of activities in the field of technical condition and operation of attractions;

3. The powers of the Government of the Russian Federation in the field of technical condition and operation of attractions;

4. The powers of the federal executive authority responsible for the development and implementation of state policy and regulatory regulation in the field of technical condition and operation of attractions;

5. The powers of the supreme executive body of state power of the subject of the Russian Federation in the field of technical condition and operation of attractions and the executive body of the subject of the Russian Federation authorized to exercise regional state control (supervision) in the field of technical condition and operation of attractions;

6. State registration and state registration of attractions;

7. Basic requirements for the technical condition and operation of attractions;

8. Prohibition of the operation of attractions;

9. Regional state control (supervision) in the field of technical condition and operation of attractions and liability for violation of the requirements of the legislation on attractions.

This structure of the document will fully ensure the implementation of the powers of the State Technical Supervision bodies.

Following the federal law "On Attractions", the Government of the Russian Federation is invited to develop "General requirements for control (supervision) in the field of technical condition and operation of attractions."

On the basis of this document, each regional State Technical Supervision authority will develop a Regulation on supervision containing control (supervision) mechanisms, including planning, prevention, risk categories, etc.

It seems that the draft "General Requirements" should contain the possibility provided by Law for the State Technical Supervision authorities to carry out a "permanent raid" to the places where operators carry out their activities. In conditions of restrictions on control (supervisory) measures and the lack of the possibility of interaction with controlled persons (operators) without coordination of such actions with the Prosecutor's Office of the Russian Federation, a "permanent raid" seems to be the best solution.

In practice, the most painful and vulnerable place of Gostekhnadzor bodies are uncontrollably moving "inflatable trampolines", whose operators ignore the requirements of the current Rules and Technical Regulations.

Posing a high potential threat to the life and health of citizens (especially children), their illegal activities can be stopped only by the State Technical Supervision authorities and only within the framework of a "permanent raid", which allows them to respond independently and with lightning speed to the threat that has arisen.

Summing up the above, it can be noted that the sphere of state registration of attractions and control (supervision) over the activities of their operators is a new developing area of legislation that has passed a very recent path of fundamental changes that continue to this day.

Our proposed solutions for the development of regulatory legal acts will only accelerate the process of improving the role of Gostekhnadzor bodies as security guards for the provision of entertainment services using attractions.

Given the small proportion of scientific papers in this field, our research can become a reference point for the implementation by the legislator of the law "On Attractions" and the adoption of "General requirements" containing an important mechanism for state Technical Supervision bodies to implement control (supervisory) measures "permanent raid".