How to constructively end the "finger-pointing" at each other when appointing persons responsible for fire safety? Let us consider CLAUSE 4 OF THE FIRE SAFETY REGULATIONS OF THE RF No. 1479.
The head of the organization has the right to appoint persons who, by their position or the nature of the work performed, are responsible for ensuring fire safety at the protected facility.
The requirement of Clause 4 of the Regulations is addressed directly to the head of the organization. Clause 4 of the Regulations is one of the key points for delimiting responsibility between the head of the organization and the person appointed by this head as responsible for ensuring fire safety at a specific protected facility. Here, one should refer to Article 38 of Federal Law No. 69-FZ dated December 21, 1994 "On Fire Safety" and recall that this legal norm places responsibility for violating fire safety requirements on both the heads of organizations and on persons appointed in the prescribed manner as responsible for ensuring fire safety.
In this case, it is necessary to understand the concept of "ensuring" fire safety, as Clause 4 of the Regulations requires the head to appoint a person responsible specifically for ensuring fire safety, and not for the fulfillment of these requirements. Legal theory divides all legal norms, including fire safety requirements, into three types: prohibitive, mandatory, and empowering (permissive).
Let's consider PROHIBITIVE fire safety requirements. PROHIBITIVE fire safety requirements are mostly established by regulatory legal acts. PROHIBITIVE fire safety requirements are practically absent in fire safety regulatory documents — Codes of Practice, GOST R, SNiP, etc. This is due to the fact that the requirements of these fire safety regulatory documents can only be applied on a voluntary basis by owners (legal possessors) of protected facilities, including heads of organizations that are located and carry out their activities in these protected facilities (buildings).
PROHIBITIVE fire safety requirements are legal norms that impose on the head of the organization (or another person) the duty to refrain from performing certain actions. PROHIBITIVE fire safety requirements are established, among others, by the "Fire Safety Regulations in the Russian Federation." It should be noted that in Federal Law No. 123-FZ dated July 22, 2008 "Technical Regulations on Fire Safety Requirements," PROHIBITIVE fire safety requirements are practically absent. As an example of PROHIBITIVE requirements from Federal Law No. 123-FZ dated July 22, 2008 "Technical Regulations on Fire Safety Requirements," one can cite Part 7 of Article 89, Part 10 of Article 100, Parts 7 and 8 of Article 119. This is actually the complete list of PROHIBITIVE requirements of the specified Technical Regulations.
Let's consider MANDATORY fire safety requirements. MANDATORY fire safety requirements are norms that impose on the head of the organization (or another person) the duty to perform certain actions. MANDATORY fire safety requirements are established, among others, by the "Fire Safety Regulations in the Russian Federation." The only requirement in Section I of the Regulations that directly OBLIGES the head to perform certain actions is Clause 62. However, in terms of their content, Clauses 2, 5, 6, 9, 10, 12, 13, 14, 15, 17, 18, 19, 21, 23, 24, 25, 26, 28, the first paragraph of 29, Clauses 30, 31, 33, 36, the second, third, and fourth paragraphs of 37, Clauses 38, 42, 43, the first paragraph of 45, Clauses 46, 47, 48, 50, 51, 52, 53, 54, the second paragraph of 55, Clauses 56, 57, 58, 60, 61 of the Regulations should also be considered MANDATORY fire safety requirements. This is actually the complete list of MANDATORY requirements of Section I "General Provisions" of the Regulations.
Conclusion:
Section I "General Provisions" of the Regulations consists in its absolute majority of PROHIBITIVE and MANDATORY fire safety requirements. However, Section I "General Provisions" of the Regulations also contains a small number of EMPOWERING (PERMISSIVE) fire safety requirements. These include Clause 4, the last paragraph of Clause 37, and Clauses 63 and 64 of the Regulations.
Now it is necessary to understand in more detail the legal nature of FULFILLMENT (EXECUTION) and COMPLIANCE with fire safety requirements as forms of implementation of these requirements.
In jurisprudence, the implementation of fire safety requirements is understood as the embodiment of the content of these requirements (prohibitions or obligations) into the lawful behavior (action or inaction) of the subjects of the legislation of the Russian Federation on fire safety (heads of organizations, officials, and other persons). Let's consider such a form of implementation of fire safety requirements as their FULFILLMENT (EXECUTION). FULFILLMENT of legal duties is the exercise by a subject of law (head of an organization, official, or other person) of their legal duties, i.e., the fulfillment of MANDATORY fire safety requirements. As stated above, MANDATORY fire safety requirements are established by Clauses 2, 5, 6, 9, 10, 12, 13, 14, 15, 17, 18, 19, 21, 23, 24, 25, 26, 28, the first paragraph of 29, Clauses 30, 31, 33, 36, the second, third, and fourth paragraphs of 37, Clauses 38, 42, 43, the first paragraph of 45, Clauses 46, 47, 48, 50, 51, 52, 53, 54, the second paragraph of 55, Clauses 56, 57, 58, 60, 61, and 62 of the Regulations. Most of these fire safety requirements establish DUTIES specifically for the head of the organization. Only in relation to the above requirements of the Regulations can one speak of their FULFILLMENT or NON-FULFILLMENT. A feature of FULFILLMENT (EXECUTION) is that the subjects of law (head of the organization, official, or other person) are obliged, regardless of their own desire, to perform active actions, which will testify to the implementation in the form of FULFILLMENT (EXECUTION) of the above MANDATORY requirements of the Regulations. NON-FULFILLMENT of the above MANDATORY requirements of the Regulations will be an administrative offense (or a criminal offense depending on the consequences) with the involvement of the guilty person to the corresponding responsibility (administrative or criminal).
Now let's consider such a form of implementation of fire safety requirements as their COMPLIANCE. Legal theory understands COMPLIANCE with fire safety requirements as the COMPLIANCE with legal prohibitions that prohibit the performance of certain actions, i.e., the subject of law (head of the organization or another person) thus implements the content of PROHIBITIVE fire safety requirements in the form of their COMPLIANCE. Unlike the FULFILLMENT of fire safety requirements, their COMPLIANCE implies passive behavior and is always associated with the implementation of PROHIBITIVE fire safety requirements. It is also necessary to pay attention to the fact that, unlike MANDATORY fire safety requirements, PROHIBITIVE requirements in their absolute majority are not addressed directly to the head of the organization. They are addressed to an indefinite circle of persons.
Therefore, COMPLIANCE with fire safety requirements is a form of implementation of PROHIBITIVE fire safety requirements, in which the subject of law, obeying the content of the requirement (prohibition), refrains from certain behavior. It should be recalled that PROHIBITIVE fire safety requirements are Clauses 7, 8, 11, 16, 20, 22, 27, the second paragraph of 29, Clauses 32, 34, 35, the first paragraph of 37, Clauses 39, 40, 41, 44, the second paragraph of 45, Clause 49, the second paragraph of 53, Clauses 55 and 59 of the Regulations.
Conclusion:
Clause 4 of the Regulations gives the RIGHT to the head of the organization to appoint a person responsible specifically for ensuring COMPLIANCE with fire safety requirements, i.e., for ensuring COMPLIANCE not with all fire safety requirements, but specifically with PROHIBITIVE fire safety requirements. By exercising the granted RIGHT to appoint persons responsible for ensuring compliance with prohibitive fire safety requirements, the head legally SHARES (partially shifts) their responsibility for a possible violation of prohibitive fire safety requirements to these persons within the framework of Article 38 of Federal Law No. 69-FZ dated 21.12.1994 "On Fire Safety."
Next, it is necessary to understand the content of the term "ENSURING" compliance with fire safety requirements.
The Government of the RF, by Clause 4 of the Regulations, intentionally does not grant heads of organizations the right to appoint a person responsible for the FULFILLMENT of fire safety requirements, emphasizing the head's right to appoint a person responsible specifically for ENSURING compliance with prohibitive fire safety requirements, as non-compliance with these requirements poses an increased danger to society. The legal concept of ENSURING fire safety requirements involves the creation of any organizational, personnel, material, or financial conditions for such compliance. However, constantly and timely monitoring the ensuring of compliance with prohibitive fire safety requirements causes significant difficulties for most heads due to objective circumstances.
RECOMMENDATION: when preparing and issuing an Order on the appointment of a person responsible for ensuring fire safety at a particular protected facility, it is advisable to regulate in detail (specify in detail) all the duties of this person for ENSURING compliance with PROHIBITIVE fire safety requirements, as well as to indicate the specific clauses of the Regulations for ensuring compliance with which this person is appointed. It is also advisable to direct these duties toward constant CONTROL over COMPLIANCE with prohibitive fire safety requirements by other persons (citizens, visitors, tenants, employees). It is advisable to appoint persons responsible for ensuring compliance with prohibitive fire safety requirements at each protected facility (building, structure, or fire compartment). CONTROL over COMPLIANCE with prohibitive fire safety requirements should be assigned to persons whose functional duties include this responsibility and are provided for by administrative documents approved by the head of the enterprise.