On approval of Rules of formation of the system of risk assessment and form of checklists by state bodies

New Unofficial translation

Order Acting № 3 of the Minister of National Economy of the Republic of Kazakhstan dated July 31, 2018. Registered with the Ministry of Justice of the Republic of Kazakhstan on September 14, 2018 № 17371.

      Unofficial translation

      In accordance with subparagraph 3) of article 85, paragraph 2, and Article 141, paragraph 4, of the Entrepreneurial Code of the Republic of Kazakhstan dated 29 October 2015, I hereby ORDER:

      1. To approve:

      1) Rules of formation of the system of risk assessment by state bodies according to Appendix 1 to this order;

      2) the form of checklists according to Appendix 2 to this order.

      2. To recognize as invalid the order № 722 of Acting Minister of National Economy of the Republic of Kazakhstan dated November 25, 2015 "on Approval of Methods of Formation by State Bodies (except the National Bank of the Republic Kazakhstan) Risk Assessment Systems, Forms of Mandatory Departmental Reporting and Checklists "(registered in the Register of State Registration of regulatory legal acts № 89, published on December 18, 2015 in the legal information and system "Adilet").

      3. The Department of Enterprise Development of the Ministry of National Economy of the Republic of Kazakhstan shall:

      1) ensure state registration of this order in the Ministry of Justice of the Republic of Kazakhstan;

      2) within ten calendar days from the date of State registration of this order, send its both in the Kazakh and Russian languages to the Republican State Enterprise on the Right of Economic Management “Republican Center of Legal Information of the Ministry of Justice of the Republic of Kazakhstan for official publication and inclusion in the Reference Control Bank of Regulatory Legal Acts of the Republic of Kazakhstan

      3) place this order on the Internet resource of the Ministry of National Economy of the Republic of Kazakhstan;

      4) within ten working days after the state registration of this order submit the information to the Ministry of Justice of the Republic of Kazakhstan to the Legal Department of the Ministry of National Economy of the Republic of Kazakhstan on the execution of measures, provided by subparagraphs 1),2) and 3) of this paragraph.

      4. Control over the execution of this order shall be entrusted to the Supervising Vice-Minister of National Economy of the Republic of Kazakhstan.

      5. This order shall be entered into force after ten calendar days from the date of its first official publication.

      Acting
Minister of National Economy
of the Republic of Kazakhstan
R. Dalenov

      AGREED
Chairman of the Committee
on Legal Statistics and
Special Records
Of the General Prosecutor’s Office
of the Republic of Kazakhstan
________________ Zhakipbayev
dated July 27, 2018

  Appendix 1
to order № 3 of Acting
Minister of National Economy
of the Republic of Kazakhstan
dated July 31, 2018

Rules of formation of the system of risk assessment by state bodies

Chapter 1. General provisions

      1. Rules of formation of the system of risk assessment by state bodies (hereinafter – the Rules) shall be developed in accordance with the entrepreneurial Code of the Republic of Kazakhstan dated October 29, 2015 (hereinafter – the Code).

      2. The Rules shall be intended for the development of the criteria of risk assessment for the selection of subjects (objects) of control and supervision for the purpose of conducting inspections and preventive control and supervision with the visit of the subject (object) of control and supervision, as well as checklists, approved in accordance with paragraphs 2 and 3 of Article 141 and paragraph 1 of Article 143 of the Code.

      3. The following concepts shall be used in these Rules:

      1) risk – probability of causing harm as a result of activity of the subject of control and supervision of life or health of the person, environment, lawful interests of an individual and legal entity, property interests of the state taking into account the severity of its consequences

      2) risk assessment system – a set of measures carried out by the control and supervision body with the purpose of appointment of inspections and preventive control and supervision with visiting of the subject (object) of control and supervision;

      3) objective criteria of risk assessment (hereinafter –objective criteria) – criteria of risk assessment, used for selection of subjects (objects) of control and supervision depending on the degree of risk in a certain sphere of activity and not dependent directly from the individual subject (object) of control and supervision;

      4) subjective criteria of risk assessment (hereinafter –subjective criteria) – criteria of risk assessment, used for selection of subjects (objects) of control and supervision depending on the results of activity of a particular subject(object) of control and supervision;

      5) checklist -a list of requirements, including the requirements imposed on the activities of subjects (objects)of control and supervision, the non-observance of which shall entail a threat to human life and health, the environment, legitimate interests individuals and legal entities, states.

      4. Regulatory legal acts of state bodies on approval of criteria of risk assessment and checklists before their approval shall be subject to agreement with the authorized body on legal statistics and special accounts for technical possibilities of automation of risk assessment systems and compliance with information system requirements – unified register of subjects and objects of inspections.

      The deadline for approval by the authorized body for legal statistics and special accounting within five working days.

      5. Special procedures for conducting inspections and preventive control and supervision with visits to subjects (objects) of control and supervision shall be applied to the subjects (objects) of control and supervision, referred to a high degree of risk.

      Unscheduled inspections and preventive control and supervision without visiting subjects (objects) of control and supervision shall be applied to the subjects (objects) of control and supervision, classified to high and not related to high degree of risk.

Chapter 2. Methods for special order of inspections on the basis of semiannual schedules

      6. Criteria for assessing the degree of risk for a special procedure for conducting inspections based on semi-annual graphs shall be formed through objective and subjective criteria.

Paragraph 1. Objective criteria

      7. The objective criteria shall be defined by the following stages:

      1) definition of risk;

      2) grouping and distribution of subjects (objects) of control and supervision on the degrees of risk (high and not related to high).

      8. the definition of risk shall be based on the specifics of the fielding which the state control and supervision shall be carried out, taking into account one of the following criteria:

      1) the level of danger (complexity) of the object;

      2) the extent of the severity of possible negative consequences, harm to the regulated sphere (region);

      3) possibility of occurrence of unfavorable accident for life or health of the person, environment, lawful interests of ah individual and legal entity, the state.

      9. After the analysis of all possible risks, the subjects (objects) of control and supervision shall be divided into two degrees of risk (high and not related to high).

      In relation to subjects (objects) of control and supervision, classified to a high degree of risk, a special procedure of conducting inspections based on semiannual schedules shall be applied.

      10. The periodicity of inspections and preventive control and supervision with the visit of subjects (objects) of control and supervision in relation to subjects (objects) of control and supervision of high risk level shall be determined by criteria of risk assessment regulating state body, not more often than once a year, and in respect of objects of high epidemic importance in the sphere of sanitary and epidemiological welfare of the population not more than once in six months.

Paragraph 2. Subjective criteria

      11. In order to implement the principle of encouraging faithful subjects of control and supervision and concentration of control and supervision on violators, subjects (objects) of control and supervision of a high degree of risk are exempt from special procedures for conducting inspections for the period determined by the criteria for assessing the risk level of a regulatory state body through the application of subjective criteria.

      If the subject shall have control and supervision of one of the mitigating indicators, the subject of control and supervision shall be exempted from the next special procedure of conducting inspections.

      The mitigating indicators include:

      1) the availability of audio and/or video fixation, with the transmission of data in the online mode;

      2) the availability of sensors and other fixation devices on data transmission in systems of the state bodies (water sensors, sensors of fixation of emissions into atmosphere and other devices).

      12. Exemption from verification based on a special order of conducting a check based on semi-annual schedules shall be carried out by application of subjective criteria for subjects (objects) of control and supervision of high degree of risk through the following stages:

      1) determination of subjective criteria;

      2) evaluation of results.

      13. Subjective criteria shall be developed on the basis of the requirements of the checklists, the non-observance of which in accordance with the risk assessment criteria of the regulatory body shall correspond to a certain degree of infringement. For each requirement, the degree of violation shall be determined from the checklists -gross, significant and minor.

      In this case, the definition of gross, significant and minor violations shall be established in the criteria for assessing the risk level of the regulatory state body, taking into account the specifics of the relevant state control and supervision.

      In the formation of subjective criteria, the degree of violation (gross, minor, significant) shall be assigned in accordance with the established definitions of gross, minor, significant violations.

      14. The risk level shall be calculated on a scale from 0 to 100 based on the criteria established in the risk assessment criteria of the regulatory state body and shall be calculated by summing the obtained indicators by subjective accordance with Chapter 4 of these Rules.

      In terms of risk level, the subject (object) of high-risk control and supervision:

      1) shall be exempted from the special procedure of conducting inspections on the basis of semiannual schedules for the term, established in the criteria of risk assessment of the regulatory state body,-with the risk level from 0 to 60 inclusive;

      2) shall not be exempted from the special procedure of conducting inspections on the basis of semi-annual schedules – with the risk level from 61 to 100 inclusive.

      15. Exemption from special procedure of conducting inspections shall be possible on the basis of applied alternative(independent) systems of risk assessment and analysis, audit, examinations in accordance with the criteria of risk assessment of the regulatory state body.

      16. Semi-annual schedules of inspections shall be formed in a special order in accordance with article 141, paragraph 2, of the code.

Chapter 3. Methods of preventive control and supervision with visiting of subject (object) of control and supervision

      17. The criteria for assessing the degree of risk for preventive control and supervision with the visit of the subject (object) of control and supervision shall be formed by objective and subjective criteria.

Paragraph 1. Objective criteria

      18. The determination of objective criteria shall be carried out in accordance with paragraph 7 of these Rules.

      19. The risk shall be defined in accordance with paragraph 8 of these Rules.

      20. After the risk shall be determined, the subjects (objects) of control and supervision shall be divided into two degrees of risk(high and not related to high).

      For subjects (objects) of control and supervision, classified according to objective criteria to a high degree of risk, subjective criteria shall be applied in order to carry out preventive control and supervision with the visit of the subject (object) of control and supervision.

Paragraph 2. Subjective criteria

      21. The definition of subjective criteria shall be carried out using the following steps:

      1) database formation and information gathering;

      2) information analysis and risk assessment.

      22. The formation of the database and the collection of information shall be necessary to identify the subjects (objects)of control and supervision, violating the legislation of the Republic of Kazakhstan. Proper use of this information shall allow for more effective state control and supervision and use of the resources of regulatory bodies.

      The following sources of information shall be used to assess the degree of risk:

      1) results of monitoring of reports and information submitted by the subject of control and supervision, including through automated information systems, conducted by state bodies, institutions and industry organizations;

      2) Results of previous inspections and preventive control and supervision with visiting of subjects (objects) of control and supervision;

      3) availability of unfavorable accidents caused by the subject of control and supervision. Adverse events include the registration of infectious diseases and (or) parasitic and group infectious diseases and poisonings, including food, fire, industrial injuries and accidents, accidents, wrecks, incidents, revealing of especially dangerous harmful organisms and quarantine objects, pockets of their distribution, reduction of the number of objects of fauna and deterioration of their environment, presence of debts on taxes and other obligatory payments to the budget;

      4) availability and number of confirmed complaints and appeals;

      5) results of audit (examination) of independent organizations (energy audit, energy expertise, independent audit at liquidation, industrial safety examination and other types of audit (expertise);

      6) results of preventive control and supervision without visiting the subject (object) of control and supervision (final documents issued on the basis of preventive control and supervision without visiting the subject (object) of control and supervision (certificate, conclusion, recommendations);

      7) analysis of official Internet resources of state bodies, mass media, in case of availability, ratings of "violators", the list of the revealed infringements on results of laboratory researches;

      8) results of analysis of information submitted by authorized bodies and organizations.

      If the subject shall have control and supervision of one of the mitigating indicators, the subject of control and supervision shall be exempted from carrying out the next preventive control and supervision with visiting of subjects (objects) of control and supervision.

      The mitigating indicators include:

      1) The availability of audio and/or video fixation, with the transmission of data in the online mode;

      2) availability of sensors and other fixation devices on data transmission in systems of the state bodies (water sensors, sensors of fixation of emissions into atmosphere and other devices);

      3) The availability of additional measures to ensure the safety of the subject (object) of control and supervision(membership in the Society of mutual insurance, the contract of voluntary insurance against accidents, the conduct of additional expertise, audit, conclusion of contracts with non-state security services and other measures to ensure the safety of the subject (object) of control and supervision).

      In order to improve the effectiveness of risk assessment, work shall be carried out on mutual exchange of information with other state bodies and countries of the Eurasian Economic Union.

      Other sources of information shall be also used to assess the degree of risk, depending on the nature of the activity provided in the risk assessment criteria of the regulatory authority.

      23. Based on available sources of information, the governing bodies of the state form subjective criteria to be evaluated.

      Analysis and evaluation of subjective criteria shall allow to concentrate preventive control and supervision with visiting of subject (object) of control and supervision in relation to subject (object) of control and supervision with the greatest potential risk.

      In this case, the analysis and evaluation shall not apply the data of subjective criteria, previously accounted for and used in relation to a particular subject (object) of control and supervision or data on which the period of limitation of the statute of limitations in accordance with the Law of the Republic of Kazakhstan.

      24. Depending on the possible risk and significance of the problem, the singularity or the systemality of the violation, the analysis of previous decisions on each source of information shall determine the subjective criteria which, in accordance with the criteria for assessing the degree of risk regulatory state body correspond to the degree of violation-gross, significant and minor.

      In this case, the definition of gross, significant and minor violations shall be established in the criteria for assessing the risk level of the regulatory state body, taking into account the specifics of the relevant state control and supervision.

      In the formation of subjective criteria, the degree of violation (gross, significant, minor) shall be assigned in accordance with the established definitions of gross, significant, minor violations.

      25. Based on the priority of the sources of information used in accordance with the criteria for assessing the risk level of the regulatory body in accordance with Chapter 4 of these Rules, the total risk level shall be calculated on the subjective criteria on a scale from 0 to 100.

      In terms of the degree of risk, the subject (object) being audited refers to:

      1) to a high degree of risk – with the risk level from 61 to 100 inclusive and in respect of it shall be carried out preventive control and supervision with the visit of the subject (object) of control and supervision;

      2) not classified to a high degree of risk-with a risk level of 0 to 60 inclusive and in relation to it shall not carried out preventive control and supervision with the visit of the subject (object) of control and supervision.

      The provisions of paragraphs 24 and 25 of these Rules shall not apply to the public authorities referred to in Chapter 3, paragraph 3, of these Rules.

      26. The multiplicity of preventive control and supervision with the visit of the subject (object) of control and supervision shall be determined by the results of the conducted analysis and evaluation of the information received by subjective criteria and shall not be able to be more often than once a year.

      27. Preventive control and supervision with the visit of the subject (object) of control and supervision shall be carried out on the basis of semiannual lists of preventive control and supervision with visiting of the subject (object) of control and supervision, formed in accordance with Paragraph 3 of Article 141 of the Code.

      28. The lists of preventive control and supervision with a visit to the subject (object) of control and supervision shall be based on the priority of the subject of control and supervision with the highest degree of risk according to subjective criteria.

Paragraph 3. Peculiarities of formation of risk assessment system for state bodies using information systems
taking into account specificity and confidentiality, in accordance with legislative acts of the Republic of Kazakhstan

      29. In the formation of a risk assessment system for state bodies using information systems taking into account specificity and confidentiality in accordance with the legislative acts of the Republic of Kazakhstan, the calculation of the total risk level, and well as risk indicators, according to which the subject of control and supervision refers to high or not high risk, shall be established in the criteria for assessing the risk level of the regulatory authority.

      30. For technical feasibility of automation of risk assessment systems and compliance with information system requirements – unified register of subjects and objects of checks, risk assessment criteria that shall be confidential in accordance with legislative acts of the Republic of Kazakhstan shall be agreed with the authorized body on legal statistics and special accounting with ensuring their confidentiality.

      The deadline for approval by the authorized body for legal statistics and special accounting shall include five working days.

Chapter 4. Procedure for calculating the total risk level according to subjective criteria

      31. In order to classify the subject of control and supervision to the risk level in accordance with paragraphs 14 and 25 of these Rules, shall be applied the following procedure for calculating the level of risk.

      In case of revealing one gross violation, the subject of control and supervision shall be equated with the risk level of 100 and in relation to it the check on special order or preventive control and supervision with the visit of entity (object) of control and supervision shall be carried out .

      If no gross violations have been identified, the total of the violations shall be calculated in a significant and insignificant measure to determine the risk level.

      In determining the indicator of significant violations the coefficient 0.7 shall be applied and this indicator shall be calculated according to the following formula:

     


      Where:

     

– indicator of significant violations;

     

– required number of significant violations;

     

– number of significant violations detected;

      In determining the indicator of minor violations the coefficient 0.3 shall be applied and this indicator shall be calculated according to the following formula:

     


      Where:

     

– indicator of minor violations;

     

– required number of minor violations;

     

– number of minor violations detected;

      The total risk rate (

) shall be calculated on a scale from 0 to 100 and shall be determined by summing up the indicators of significant and minor violations according to the following formula:

     


      Where:

     

– total risk level;

     

– indicator of significant violations;

     

- an indicator of minor violations.

      The provisions of this paragraph shall not apply to the state bodies referred to in Chapter 3, paragraph 3, of these Rules.

Chapter 5. Checklists

      32. Checklists shall be prepared for homogeneous groups of subjects (objects) of control and supervision and shall include requirements in accordance with paragraph 2of article 132 of the Code and subject to the conditions specified in paragraph 2 of article 143 of the Code.

      33. Homogeneous groups shall be divided both by types of activity, carried out by subjects (objects) of control and supervision, and by the form of registration (legal entities, individuals, individual entrepreneurs).

      34. Checklists shall be formed according to the form in accordance with Appendix 2 to this Order.

      35. The requirements of the checklists for the areas of control and supervision specified in paragraph 4 of Article 141 of the Code, shall correspond with subjective criteria developed in accordance with part one of paragraph 13 of these Rules.

  Appendix 2
to order № 3 of Acting
Minister of National Economy
of the Republic of Kazakhstan
dated July 31, 2018
  Form

Checklist

      in the field/in the area/for

      _________________________________________________________________________

      in accordance with Articles 138 and 139 of the Entrepreneurial Code of the Republic of Kazakhstan

      _______________________________________________________________________

     

      regarding_______________________________________________________________

      name of homogeneous group of subjects (objects)

      _______________________________________________________________________

      control and supervision

      _______________________________________________________________________

      The state body appointed the verification

      _______________________________________________________________________

      Act on the appointment of inspection/preventive control and supervision with the visit of

      the subject (object) control and supervision _____________________________________

      _______________________________________________________________________

      №, date

      Name of subject (object) of control and supervision ______________________________

      ________________________________________________________________________

      (Individual identification number), business identification number of the subject

      (object) control and supervision ______________________________________________

      Location, address


the list of requirements

required

not required

meet the requirements

not meet the requirements
 

1

2

3

4

5

6













      Management official _____________________________________-

      position signature

      _______________________________________________________-

      full name

      Head of the subject of control and supervision______________

      _____________________________________________________________

      position signature

      ________________________________________________________________

      full name

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