Mandatory voluntariness

The Law “On Technical Regulation” has serious conceptual flaws

Judging by the numerous responses from experts, the idea of ​​combining the tasks of technical regulation and standardization tasks in one federal law did not find support among the majority of potential users of the law “On Technical Regulation” . There are many reasons for this, among which we will highlight three.

Firstly, it is very likely that the scope of technical regulation was determined erroneously. Instead of a clearly expressed focus on ensuring product safety, the implementation of mandatory requirements for products was stated along with the implementation of product requirements on a voluntary basis. This has given the law a vagueness, which is reinforced by Article 7 (clause 1), which, when listing the types of safety provided by technical regulations, mentions industrial safety among others. But ensuring industrial safety is related to the enterprise, production, technological processes, i.e. goes beyond the scope of regulation of the current law. Industrial safety is achieved not only by the use of products at industrial facilities that meet the mandatory requirements of technical regulations, but also by compliance with the relevant safety rules.

Secondly, the law failed to clearly separate the ideas of mandatory and voluntary, especially at the intersection of technical regulation and standardization. Manufacturers and users of products were at a loss. They were faced with questions to which there were no clear answers.

These are the questions. How to combine compliance with the mandatory requirements of technical regulations and compliance with the principle of voluntary application of standards (p. 7)? After all, the mandatory requirements of technical regulations, compliance with which is aimed at ensuring conditions for the safe use of products, can only be implemented through scrupulous accounting and mandatory compliance with a set of technical requirements given specifically in the relevant standards. It is stated that the so-called mandatory standards (what about the principle of voluntary application of standards?) can be used (when they can and when not?) both for product certification and for state control over compliance with regulatory requirements. Why is the classification of objects of technical regulation in the development of technical regulations carried out with the indication of OKS codes (OKS - all-Russian classifier of standards), and not OKP codes (OKP - all-Russian classifier of products), which seems illogical in form, because the object of regulation is the product, not standards? The uncertainty of the provisions of the law is too great and creates preconditions for arbitrary interpretations and abuses.

Thirdly, the implementation of the idea of ​​mandatory confirmation of conformity by declaring conformity on the basis of one’s own evidence poses a serious danger. Most likely, the materials of these declarations, the storage of which still needs to be organized in the archives of the relevant executive authorities, will suffer from serious flaws in assessing the safe properties of products, and the markets will be filled with dangerous products.

Trying, on the one hand, to reduce pressure on business and at the same time creating unclear rules of the game, the state in this case is doing a disservice to both business and itself. Business, having felt the relaxation and reduction in demands, will inevitably lose its competitiveness, and the state will significantly increase the costs of compensating for damage from man-made disasters and helping the victims.

Thus, in order to eliminate the uncertainties of the provisions of the law, it is necessary to legislatively separate the tasks of technical regulation and standardization and revise the forms of conformity assessment. In turn, the scope of technical regulation should include only tasks to ensure product safety. In regulatory language, the law must regulate the relations that arise during the development, application and implementation of mandatory product requirements.

Such a structure of the technical regulation system, in our opinion, will be the most optimal.

Vladimir NEIMAN, candidate of technical sciences