Special regimes of state control (supervision): legal regulation

Golubeva Tat'yana Mihailovna lecturer; Faculty of Law; Federal State Autonomous Educational Institution of Higher Education 'National Research Nizhny Novgorod State University named after N.I. Lobachevsky' 603093, Russia, Nizhny Novgorod region, Nizhny Novgorod, Fruktovaya str., 9/3 golubeva_tatjana@mail.ru

The modern system of state control (supervision) is undergoing a transition to a new stage of reform associated with the qualitative implementation of decisions taken during the previous stage. One of the results of the control (supervision) reform is the adoption of Federal Law No. 248-FZ dated 07/31/2020 "On State Control (Supervision) and Municipal Control in the Russian Federation."

The term "administrative and legal regimes of state control and supervision" is not disclosed in the law and has not received due attention in the scientific field, which underlines the relevance of the research topic. In general, if we talk about administrative and legal regimes in general, then one cannot disagree with the opinion of A.F. Nozdrachev, who speaks of regimes as a special kind of legal regulation in the field of administrative law. This regulation is aimed at management activities, the legal status of subjects and management procedures.^{[1, p. 102]}. A sufficient number of studies, including O.V. Ziborova ^{[2, p.400]}, have been devoted to the correlation of the concepts of "regime", "legal regime" and "administrative-legal regime". However, special regimes as an independent instrument of state control (supervision) are being investigated for the first time.

From the point of view of the theory of administrative law, these regimes are undoubtedly related to general legal categories, but, nevertheless, they represent a special type of regime with its own characteristics. The signs include: a special scope; a regulatory framework with prohibiting and binding administrative and legal norms; a special subject composition (mandatory subjects are executive bodies of public authority and their officials exercising control and supervisory powers), as well as the establishment of a special legal status of these subjects (depending on the specific type of regime, the scope of the rights, duties, and responsibilities of the participants in these legal relationships may vary). Another feature of the administrative and legal regimes of state control (supervision) is a set of special regime tools: regulations, law enforcement acts, coercive measures.

Thus, the concept of the administrative and legal regime of state control (supervision) can be considered as a theoretical and practical legal structure. In addition, the author proposes this definition of administrative and legal regimes of state control (supervision), which is a set of legal regulations, regime tools that determine the procedure for the activities of executive bodies of public authority and their officials exercising control and supervisory powers aimed at preventing, detecting and suppressing violations of mandatory requirements and providing for the possibility of applying administrative coercion measures., as well as determining the special legal status of subjects of control and supervisory legal relations.

One cannot but agree with the opinion of V.V. Kostylev, who considers the regimes of state control (supervision) to be multifaceted, having a special focus, which leads to difficulties in characterizing them. ^{[3, p.235]}

Depending on the conditions under which the regime is established and implemented, the general regime of state control (supervision) and special regimes can be distinguished.

As D.N. Bakhrah quite rightly points out, general regimes are established in everyday administrative activities and regulate typical managerial situations in society. Special regimes in the field of administrative and legal regulation are established and implemented when special measures are needed in special conditions, on a certain territory or for certain objects (subjects). ^{[4, p. 164]}

The general regime of state control (supervision) is applied under normal conditions and is typical for most types of state control (supervision). Special regimes of state control (supervision) are such regimes of state control (supervision) that are implemented in special conditions, or are established for control (supervision) over special entities, or are established where the continuous participation of control and supervisory authorities is necessary.

Special administrative and legal regimes of state control (supervision) are established with the following objectives: firstly, to ensure the minimization of dangerous consequences in case of non-compliance with mandatory requirements, secondly, to reduce planned control and supervisory measures and, as a result, reduce the administrative burden on business entities.

The previously mentioned law in chapter 18 regulates special regimes of state control (supervision). To date, the legislator has established three such regimes: monitoring, permanent state control (supervision) and a permanent raid, which are carried out on an ongoing basis.

The legislator considers monitoring to be a remote type of regime, which is carried out on an ongoing basis. In this case, control is carried out by analyzing information about the objects of control obtained by using technical means (audio recording, video recording, photography). Due to the use of remote monitoring (supervision), the risks of emergencies in controlled enterprises are gradually reduced, as technical means of control (supervision) replace human "attention". In addition, constant systematic monitoring allows you to detect a violation (or impending violation) of mandatory requirements in real time and minimize harmful consequences in time. This reduces administrative pressure for bona fide business entities: they do not need to interact with the inspectors of the control (supervisory) body and prepare for inspections.

This type of state control (supervision) regime is established in the implementation of control (supervision), for example, in the field of animal treatment, in the field of civil aviation, etc.

Voluntary and mandatory monitoring is regulated. Voluntary monitoring is based on the statement of a controlled person who meets certain criteria about the desire to conclude an agreement with a control (supervisory) body.

First, the controlled entity must meet the requirements for monitoring when implementing a specific type of federal state control (supervision), for example, the availability of certain infrastructure and appropriate technical capabilities.

Secondly, in order to carry out monitoring as a state control (supervision) regime, technical readiness for information interaction between the controlled entity and the control (supervisory) body is necessary. In addition, the technical equipment and monitoring support is provided by a controlled entity.

When switching to voluntary monitoring, the controlled entity is exempt from scheduled inspections, which is a significant reduction in pressure on the business entity.

However, according to E. P. Kotsyurko, voluntary monitoring is declarative in nature and has not been developed in practice to date. ^{[5, p.62]} Let us disagree with this opinion and cite the following facts.

In 2022, thanks to the cooperation of the Federal Service for Supervision of Natural Resources and Gazprom Neft, a remote inspection service with augmented reality technology was launched ^[6]. In this case, state control (supervision) is implemented remotely through the collection and analysis of data on emissions (discharges). harmful substances that pollute the environment. Data on facilities that have a negative impact on the environment is transmitted directly to the state register of facilities through the use of automatic means of measuring and accounting for emissions. We consider this practice to be very useful and promising, since under the general regime, an inspector from a control (supervisory) agency came to such controlled facilities with a scheduled inspection once every two to three years. This practice will make it possible to monitor and record violations of mandatory requirements in real time and, based on the data obtained as a result of monitoring, immediately stop the consequences dangerous to humans and the state.

However, we consider the provision according to which a controlled person must provide himself with the equipment necessary to establish a monitoring regime at his own expense to be unjustified. In order to increase the efficiency and effectiveness of state control (supervision), in our opinion, the transition from routine inspections to continuous monitoring should be stimulated and encouraged, and even more so financially supported.

Permanent state control (supervision) is legally fixed as another special regime of state control (supervision). In accordance with the basic law, this is a state control (supervision) regime that provides for the possibility for inspectors of control (supervisory) bodies to permanently stay at controlled facilities and perform necessary actions. Controlled objects in this case are usually high-risk objects.

Thus, this regime is provided for in the implementation of federal state supervision in the field of industrial safety; safety of hydraulic structures; assay supervision; fire supervision and supervision in the field of transport safety.

It is important to note that there has been a decrease in fatal accidents at enterprises where a permanent state control (supervision) regime has been established. Thus, in the mining and non–metallic industry, 43 fatal accidents occurred in 2021, and 39 in 2022; in the field of supervision of metallurgical and coke chemical facilities, 12 fatal accidents occurred in 2021, and 6 in 2022.

The establishment of permanent state supervision over objects of various types of federal state control does not exclude the organization and conduct of unscheduled control (supervision) measures in relation to such objects.

We agree with M.M. Nakhapetyan's opinion, despite the fact that legal entities own particularly dangerous production facilities, the state should also pay great attention to industrial safety. ^{[7, p.64]}

Previously, for the legal regulation of this regime at specific high-risk facilities, separate regulations were adopted regulating the establishment and implementation of a permanent regime of state control (supervision), for example, at hazardous production facilities or hydraulic structures. However, this regulation was subsequently changed. Detailed regulatory legal acts have been abolished, and the legal regulation of the establishment and implementation of permanent state control (supervision) is now fixed in the Regulations on the Type of Control (Supervision). We consider this change to be erroneous. Since the establishment and implementation of a permanent state control regime has its own special specifics related to special controlled objects, special conditions, and possible restrictions on the rights and interests of business entities in the process of implementing this regime.

Thus, in our opinion, the regulatory regulation of the regime of permanent state control (supervision) should be carried out through the adoption of a separate Government decree, which would contain all the specifics of this regime.

Special state control (supervision) regimes include a permanent raid, in which an inspector of a control (supervisory) body is constantly at special checkpoints or moves around a certain territory (water area).

A permanent raid can be established under control (supervision) in automobile, urban land transport and electric transport, in the field of civil aviation, in the field of merchant shipping and inland waterway transport, as well as in the field of road safety.

The decision of the control (supervisory) body establishes points of control over the territory or water area. In these territories or waters, a permanent raid is carried out against vehicles, production facilities, activities or actions of citizens and organizations.

We disagree with M.M. Isaev's opinion that this regime of state control (supervision) nullifies efforts to reduce excessive administrative pressure on business entities, since a permanent raid is established on critically important controlled facilities, where non-compliance with mandatory requirements in the course of business activities can lead to high risks of harm to people and the state as a whole. ^{[8, p.35]}

Thus, the current legislation includes only those regimes that are constantly implemented as special regimes of state control (supervision).

However, we consider this position to be inconsistent with current trends in the field of control and supervisory activities and propose to legislate temporary regimes of state control (supervision), which are limited to a specific period. In our opinion, such regimes include control (supervision) during the operation of experimental legal regimes in the field of digital innovation, a moratorium on inspections and an experiment on remote industrial control.

The moratorium on inspections is related to the exemption from scheduled inspections for small and medium-sized businesses and scheduled inspections of extremely high and high-risk facilities, as well as hazardous production facilities of hazard class II and hydraulic structures of class II. In addition, in some cases, it is planned to replace a planned (supervisory) event with a preventive visit.

We agree with the opinion of A.V. Martynov and V.V. Chernikov that due to monitoring, excessive administrative pressure of control (supervisory) bodies on some business entities should be reduced by refusing to carry out planned and unscheduled control and supervisory measures. ^{[9, p. 126]}. In addition, we consider the experience of implementing the moratorium to be successful and see in this the further development of the reform of control (supervision): avoiding continuous inspections for small and medium-sized businesses (moratorium) and the active introduction of prevention and self-monitoring tools for this type of business participants.

Also, in our opinion, the experiment on the use of remote control in the field of industrial safety belongs to the special regimes of state control (supervision), which are carried out on a temporary basis.

This experiment has been carried out since February 1, 2021 and consists in the fact that industrial enterprises are installing a remote industrial safety monitoring system, that is, multiple indicators and sensors that monitor violations of mandatory requirements. Thus, it becomes possible to predict and recognize emergency threats early and, as a result, take timely measures to stop the threats.

In this regard, we consider the opinion of a number of scientists who believe that the central goal of state control (supervision) is being transformed due to the active introduction of modern digital technologies and the minimization of human interference to be well-founded. ^{[10, p. 89]}

State control (supervision) should also be carried out within the framework of experimental legal regimes in the field of digital innovations ("digital sandboxes"). The peculiarity of its implementation in this case will be the period of validity of this control (supervision) regime, which is limited by the operation of the most experimental legal regime. In addition, it is important to understand that the establishment of an experimental legal regime can cancel some of the norms that "interfere" with the testing of digital solutions, but also introduce new ones that are mandatory for experimental subjects. This justifies the separation of this regime of state control (supervision) into an independent regime. However, to date, the implementation of "digital sandboxes" is at an early stage, and it is premature to draw conclusions about the effectiveness of the types of state control (supervision) regime under consideration.

Scientific discussions raise the issue of the legal nature of administrative and legal regimes of state control (supervision). We disagree with the opinion of A.D. Sokolov, who classifies special regimes of state control (supervision) as control (supervisory) measures. ^{[11, p.72]} The basic law on control (supervision) contains an exhaustive list of control (supervisory) measures, and there are no special regimes. In addition, we believe that administrative and legal regimes of state control (supervision) have a more complex mechanism of functioning than measures or actions and have all the signs of a special instrument of state control (supervision).

In conclusion, the following conclusions can be drawn.

Firstly, the concept of administrative and legal regimes of state control (supervision) has not received due study in the scientific world, and accordingly research in this area is relevant and timely.

Secondly, the regimes under consideration can be implemented under normal conditions and then they can be designated as a general regime, as well as in special conditions, in a certain territory or in relation to special subjects. Such regimes are called special regimes of state control (supervision).

Thirdly, it is necessary to legislatively define not only special regimes that are carried out on an ongoing basis (monitoring, permanent state regime, permanent raid), but also temporary regimes of state control (supervision) – a moratorium on inspections, an experiment on the use of remote industrial control, control (supervision) under experimental legal regimes in the field of digital innovation. The introduction of these amendments to the current legislation is aimed at structuring the legal regulation of state control (supervision), as well as achieving a balance between the activities of control (supervisory) bodies and the economic activities of business entities.