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Problem Aspects Of Legal Support Of Anti-Terrorist Protection Of The Fuel And Energy Facilities
 
PIIS231243500022183-9-1
DOI10.18572/2410-4390-2018-4-78-84
Publication type Article
Status Published
Authors
Yury V. Lipin 
Affiliation: Public Joint-Stock Company Mosenergo
Address: Russian Federation, Moscow
Journal nameEnergy law forum
EditionIssue 4
Pages78-84
Abstract

To date, there are practically no legal studies on the problems of legal regulation of public relations arising upon ensuring safety and anti-terrorist protection of the fuel and energy facilities. The author studies the definitions and legal content of such concepts set forth in the laws on anti-terrorist protection of the fuel and energy facilities as the subject of the Fuel and Energy Complex, the head of the subject of the Fuel and Energy Complex, the system of physical protection, and the engineering and technical means of protection. The current content of the legal support of measures for categorization and provision of the fuel and energy facility with the system of physical protection is considered. The author dwells upon the main problems arising upon implementation by the subjects of the Fuel and Energy Complex of the said measures. The judicial practice on disputes related to determination of the proper subject of the Fuel and Energy Complex and invalidation of security service contracts concluded with the improper subject is analyzed. Based on the analysis of the current regulatory legal acts and judicial practice, proposals were stated for introduction of amendments to certain regulatory legal acts in the field of safety and anti-terrorist protection of the fuel and energy facilities.

Keywordsenergy law, energy security, anti-terrorist protection, fuel and energy facilities, subjects of the Fuel and Energy Complex
Received03.11.2018
Publication date21.12.2018
Number of characters25907
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Table of contents

Arrangements for Physical Protection System at the Fuel and Energy Facility
Ensuring Physical Protection of the Fuel and Energy Facility by Security Units
1 The current state of the world economy imposes special requirements on all sectors of the Russian industry, and above all on one of the most important industries: the Fuel and Energy Complex.
2 The country’s Fuel and Energy Complex determines its economic potential and stability, and due to the specific nature of social relations as well as importance for the socio-economic development of the country, it requires the use of not only the most advanced production technologies, but also the most serious measures aimed at safety and security of the facilities of the Fuel and Energy Complex (hereinafter referred to as the FEC).
3 At the same time, it should be noted that for quite a long time, protection of the fuel and energy facilities has not been regulated by any special law, but only by general regulatory legal acts being common to all sectors of the economy (the Civil Code of the Russian Federation, the Criminal Code of the Russian Federation, Federal Laws No. 116-ФЗ dated July 21, 1997, On Industrial Safety of Hazardous Production Facilities, and No. 35-ФЗ dated March 6, 2006, On Counteracting Terrorism, etc.).
4 However, the above regulatory legal acts did not take into account the specific nature of ensuring the safe operation of the fuel and energy facilities.
5 N.A. Petruseva and V.Yu. Korzhov mention the accident at the Sayano-Shushenskaya HPP in August 2009 as one of the catalysts for adoption of a special law that establishes requirements to safety and security of the FEC facilities. At that moment, there was an urgent need to adopt a special regulatory legal act to create the basis ensuring sustainable and safe operation of the fuel and energy facilities, protection of interests of the individual, the society, and the state in the FEC against unlawful interference. [1]
6 One cannot but agree with this. At the same time, it seems that such a need arose at a deeper level, maybe, due to the reforms in the energy sector, the fact that small business entities own FEC infrastructure facilities that are important for the heat supply of entire cities, and accidents at the international level (accident at Fukushima-1 NPP in March 2011).
7 In the middle of 2011, in order to form the basis for sustainable and safe operation of the fuel and energy facilities, to protect interests of the individual, the society, and the state in the FEC against unlawful interference, Federal Law No. 256-ФЗ dated July 21, 2011, On Safety of the Fuel and Energy Facilities was adopted (hereinafter referred to as Federal Law No. 256-ФЗ). This law defines the organizational and legal framework in the field of ensuring safety of the fuel and energy facilities in the Russian Federation.
8 This Federal Law shall apply to the facilities of the electric power industry, the oil producing, oil refining, petrochemical, gas, coal, shale, and peat industries as well as the petroleum products, heat, and gas supply facilities.
9 Herewith, it should be noted that the requirements of this Federal Law do not apply to the nuclear power facilities.
10 Ensuring safety of the nuclear power facilities is regulated by special regulatory legal acts (Federal Law No. 170-ФЗ dated November 21, 1995, On the Use of Nuclear Energy, Resolution of the Government of the Russian Federation No. 749 dated June 26, 2017, On Approval of the Rules for Determining the Safety Zone with the Special Legal Regime of the Object of Nuclear Energy Use, and the Rules for Provision of the Special Legal Regime of the Safety Zone with the Special Legal Regime of the Object of Nuclear Energy Use, etc.).
11 Upon adoption of Federal Law No. 256-ФЗ, the subjects of the FEC were obliged to arrange for measures aimed at ensuring safety of the fuel and energy facilities.
12 While determining a set of persons on whom these obligations are imposed, one should refer to Article 2 of Federal Law No. 256-ФЗ, which gives the legal definition of the subject of the FEC.
13 Thus, the subject of the FEC means an individual or a legal entity that owns the fuel and energy facilities under the right of ownership or another legal right.
14 Therefore, the fact that the subject of the FEC has a legal right (ownership, lease, economic control, operational management, etc.) to the fuel and energy facility shall be deemed a qualifying feature making it possible to identify such a subject.
15 At the same time, it appears that if an entity performs operation and/or maintenance of the facility (for example, by virtue of a contract for operation and/or maintenance of the facility), or if the lease agreement provides only for the powers to use (according to Article 606 of the Civil Code of the Russian Federation) under the lease (property lease) agreement, the lessor (landlord) undertakes to provide the lessee (tenant) with property for a fee for temporary possession and use or temporary use, then this entity shall not be deemed the subject of the FEC.
16 In practice, this clause raises a number of questions, and the most important of them is who will bear the costs relating to equipment of the fuel and energy facilities in accordance with the requirements of Federal Law No. 256-ФЗ and the subordinate acts adopted on its basis.

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1. Petruseva N.A., Korzhov V.Yu. Comments on Federal Law № 256-FZ dated July 21, 2011 On Safety of the Fuel and Energy Facilities (Article by Article) // ConsultantPlus Reference Legal System. 2012.
2. Appellate Resolution of the Moscow City Court dated December 8, 2016 in case № 33-16550/16.
3. Decision of the Leninskiy District Court of Saratov № 12A-111/2015 dated November 10, 2015.
4. Ruling of the Supreme Arbitration Court of the Russian Federation № VAS-19397/13 dated January 22, 2014, in case № A74-5474/2012//
5. Ruling of the Supreme Arbitration Court of the Russian Federation № VAS-17003/13 dated November 27, 2013, in case № A63-18576/2013//

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