The Verkhovna Rada of Ukraine adopted the draft laws No. 3742 and №3743, which became the Laws of Ukraine No. 1534-IX of 06/03/2021 and No. 1582-IX of 06/29/2021, respectively. These laws, which come into force on October 1, significantly change the rules for prosecuting participants of the transportation process (hauliers and shippers) for violating the maximum size and weight standards for the transportation of goods by roads. However, the provisions of these laws contain a number of contradictions both in the procedure for identifying violators of weight measurement checks on the roads, and bringing them to administrative responsibility, which can lead to abuse by supervisory authorities, increasing of administrative pressure on participants of the transport process, and as a result, to slow down the logistics of cargo transportation, including agricultural products, by roads of Ukraine. Ruslan Kalnytskyi, a logistics expert from an advisory center “Smart Country”, spoke about this situation in an interview with a publishing house GolosUA.

- Ruslan, how were the requirements for the weight measurement check were regulated before these laws?

- Road traffic is monitored by taking into account the requirements for the maximum total vehicle mass or axle load, which must not be exceeded when vehicles are moving. Such requirements are specified in the paragraph 22.5 of the Road Traffic Rules (RTR). In the same paragraph of the RTR there are requirements for the maximum vehicle’s weight, namely, requirements for their maximum width, height and length. And for the movement of vehicles that exceed these overall standards, you need to obtain permission and agree on the route of march, including accompany of the vehicle with patrol cars. As for the possibility of movement of vehicles in excess of their maximum weight, then it is necessary to take into account what kind of cargo is transported by such a vehicle: divisible or indivisible. If this is a divisible cargo, then it cannot be transported if the maximum weight standards are exceeded. If the cargo is indivisible, then you need to obtain a permit for its transportation (the same as when exceeding the maximum weight norms). You may have seen on the roads a situation, when a large turbine is being taken from the factory, it is loaded onto a large tractor and transported with an accompanying car, and before that a written permit is made, as the relevant norms of laws and by-laws require. Ukrtranssecurity controls the observance of the established weight by the carriers.

- What changes on the issues of weight measurement check are provided for by Law No. 1534-IX of 06/03/2021 (draft bill 3742)?

- Firstly, this law increased the amount of the carrier's financial liability for exceeding the maximum size and weight standards by 30 percent or more - the amount of the fine for this violation for the road carrier increases by 50% (specific amount of the sanction for exceeding such standards depends on the percentage they are exceeded, and begins to apply when they are exceeded by 5 percent or more).

Secondly, the law directly clarified that a financial sanction to the carrier for overloading is applied both when transporting divisible goods exceeding limit norms, and when transporting indivisible goods, if the carrier does not have a permission to transport such indivisible goods. Previously, unscrupulous road carriers, who used inaccuracies in the articles about responsibility for overloading in the article 60 of the current Law of Ukraine "On Road Transport", managed to judicially avoid bringing them to financial liability for the transportation of divisible goods which exceeded maximum weight standards. That means, the new law eliminates this legal conflict in order to make the punishment of road carriers for such a violation irreversible.

Thirdly, the law directly specifies the competence of Ukrtranssecurity to recover of payment juridically for exceeding the maximum limits. In fact, we are talking about a large-sized cargo, for example, a turbine, for the transportation of which there is no permit, then in addition the carrier will have to pay the fine and the fare. The fare is calculated on the base of the mileage travelled. This payment can only be collected through an adjudication. Formally, nowadays there is no norm in the law that gives Ukrtranssecurity the right to go to court with such a claim. The corresponding document of the Cabinet of Ministers contains this norm, but the courts refuse to consider the claim, because there is no such a norm in the law. In fact, we are talking about the elimination of this legal conflict in order to give Ukrtranssecurity the right to collect this fee in court.

Fourthly, this law provides for the introduction of the Electronic Register of consignment notes (СN). How it will function, the law does not specify, but gives authority to the Cabinet of Ministers to determine the conditions for the functioning of the mentioned mechanism. Why this Register is important: weight control will be automatic, including automatic complexes - it will be possible to find the CN with the cargo that he is carrying in order to understand who is a participant in this transportation process and find out who the shipper is.

- Ruslan, is only the carrier company responsible for overloading the car?

- Before the adoption of the bill No. 3743, only the road carrier was responsible for this (financial responsibility and administrative one). But with the adoption of this bill, which became Law No. 1582-IX of 06.29.2021, administrative liability is also introduced for the consignor who indicates wrong information about the mass and size of the vehicle (or indicating such parameters that exceed the limit) in CN, provided the fact, the vehicle moves on the roads exceeding weight limits. And there are several legal conflicts, as well as questions to the deputies regarding the validity of the approaches applied both to the process of identifying a violation by the consignor, and the size of the established sanctions for such a violation. In particular, this law stipulates that the consignor will be a subject to administrative discipline according to a simplified manner, as it’s provided for administrative offenses recorded in an automatic mode.

This procedure for detecting a violation is like the procedure for detecting a vehicle overspeeding through surveillance cameras. Accordingly, a decision on a violation is made without the participation of an individual or legal entity-violator, without writing a protocol, without receiving explanations. If this is probably right for the carrier, and by the number it is possible to find out who is the owner of the transport, and it can be find out even from video cameras on the roads, then who is the shipper cannot be seen from the cameras. Lawyers do not understand how Uktranssecurity inspectors will establish that a particular consignor's cargo is in the transport before the Electronic Register of CN is created? In other words, in my opinion, this simplified mechanism for bringing the consignor to administrative responsibility will be fair and operational only after the full launch of the Electronic Register of СN. That means, the law contains a simplified procedure for bringing the consignor to administrative responsibility for overloading, but there is no list of evidence by which this violation will be proved, and this does not correspond to the principle of legal certainty that any law must meet.

Therefore, I believe that until the Electronic Register of Consignment Notes is operational (which will make it possible to link a specific transportation to a specific consignor) it is necessary to bring the consignor to responsibility in a general way - writing a protocol with explanations from the consignor, in an open way.

- How does Law No. 1534-IX of 06/03/2021 (draft bill 3742) change the rules of Ukrtranssecurity’s operation?

- In addition, to settle a number of procedural issues related to the usage of photo and video recording of violations by Ukrtanssecurity employees, obtaining explanations from drivers, familiarization with the documents of the road carrier, the possibility to copy them, granting carriers the right to record the verification process by making photos and videos, this Law also provides employees of Ukrtanssecurity the right to escort transport, which has signs of violation of the maximum size and weight standards, to the nearest weighing point for appropriate control (at a distance of up to 50 km from the place where the vehicle was stopped). It should be understood that nowadays Ukrtranssecurity controls the weight of the vehicle at the appropriate weighing stations (complexes), which are stationary and automatic. Automatic ones are the frames on the road that takes data automatically without the participation of people. Stationary ones provide for weighing the vehicle on appropriate scales.

And with such a right, a number of questions also arise. For example, which law provides for mechanisms to minimize abuses by Ukrtranssecurity employees in the exercise of this right, so that this does not lead to the direction of all cars to weigh stations, and as a result, a queue of cars at such stations, an increase in the costs of shippers for logistics (weighing stations may not be located along the route of the vehicle, as a result of which the carrier will have to travel an extra 100 km). Unfortunately, since it is not clear in the law how to visually determine (without weighing) the vehicle’s weight and to prove that a limit is exceeded - there is still no answer to this question.

- What do you think, what are the visual signs of violation by a vehicle of the limit norms for its mass without weighing it?

- The question "How visually, without weighing, to determine the volume of cargo and, accordingly, the mass of the vehicle?" should be asked to the authors of this legislative initiative. I think it would be correct to provide for the obligation for Ukranssecurity employees to carry out mathematical calculations, in particular, for bulk cargo, it is necessary to determine the width, depth, type of cargo, then carry out the appropriate calculations according to a certain formula to determine the approximate weight of the cargo. Such a mass of cargo will have to be added to the mass of the vehicle, which is indicated in the transport’s registration document. And when, based on the results of these calculations, the total mass of the vehicle with cargo is calculated, there will be an understanding of whether there are signs of overloading, and only after that such a car should be sent to the scales.

Nowadays, in the current decree of the Cabinet of Ministers, which regulates the procedure for dimensional check, there is no description of the procedure for visual determination of overload signs - there is only a description of how to weigh a car, and what documents are made. But it is very important that this procedure is regulated and that every stopped truck is not sent to the weighing station, but only those one with signs of an offense.

- The media writes that legislative innovations will oblige farmers to weigh cars with a cargo in the fields. Is this issue implied in the adopted laws?

- Let me start by saying, the adopted laws do not provide for such an obligation. However, it is logically to weigh a car with a cargo in the field. As far as I know, the media began to write about this after the Law No. 1582-IX of 06/29/2021 (bill No. 3743) introduced administrative liability for the consignor for indicating in CN or other documents on the cargo with incorrect information about the mass of the vehicle (or the indication of data about the weight, which exceeds the limit), taking in to account that the vehicle actually moves on roads exceeding the weight limit. Moreover, CN or other documents must be drafted for any movement of the cargo, including from the field. Accordingly, in order for the consignor to exclude the risk to be brought to book for this administrative responsibility, he has to understand the exact weight of the car together with the transport, and it is logically, that to know this, the car must be weighed: and if the cargo is taken from the field, then it must be weighed in the field. But where are the scales in the field?

That means, the norms of these laws do not oblige the shipper to weigh the car with a cargo in the field, but in CN reliable information about the weight of the car with a cargo must be specified and it this weight should not exceed the limit.

- What is the size of the new fines for the carrier in case of violation of weight norms?

- By the new laws the size of the financial sanction and the fine for an administrative offense in case of exceeding the maximum size and weight standards by 30 percent or more have been increased by 50% for the carrier. For exceeding the limit in the range from 5 to 30% - the current size of the financial sanction and fines for an administrative offense for the carrier remained at the same level.

- You previously mentioned a number of claims both to the determination of the actions of the consignor (for which administrative responsibility is provided) and to the amount of sanctions for such violations for the consignor. Could you tell us about this more detailed and clarify exact problems which exist on this issue in the newly adopted laws that should be eliminated?

- In this case, we are talking about Law No. 1582-IX of 06/29/2021 (draft bill No. 3743), which contains the following problems that require elimination:

First of all, this law contains a discriminatory approach to determine the amount of administrative fines for a shipper for similar offenses in comparison with carriers.

So, if for the carrier administrative responsibility occurs for exceeding the limit by 5 percent or more, then the shipper is fined even in the case of a small overload: 10 kilograms extra, for example.

In addition, if for the carrier the penalties are set on the basis of the percentage of exceeding the cargo’s limit (5-10% is a fine of UAH8500, 10-20% is a fine of UAH17,000, 20-30% is a UAH34,000 fine, more than 30% of overload is UAH51,000 fine), then for the shipper the legislators have forgotten about such a gradation, and if the shipper at least slightly exceeds the limit of the general weight, then the fine is UAH51,000 immediately. In my opinion, this is unfair, discriminatory and does not take into account the norms of the Article 61 of the Constitution on the individual nature of legal responsibility and the norms of the Articles 31-35 of the Code of Administrative Offenses of Ukraine that, when prosecuting, individual characteristics must be taken into account: a fine for exceeding weight limits by 10% should not be the same as for 50% overload.

Also, the legislators did not take into account such a moment that if the shipper carries his cargo with his own transport, then the shipper and the carrier are one legal entity. And if there is an overload, then the legal entity will be brought to administrative responsibility 2 times - as a carrier and as a consignor, which contradicts the Article 61 of the Constitution of Ukraine: you cannot be brought to book twice for one violation.

And there is one more unfair and unjustified moment: an administrative fine may be applied to the consignor for exceeding of the limit not only the maximum weight norms, but also the maximum size norms, if there is no permission for such a transportation of oversized cargo or the movement of an oversized vehicle. However, for some reason, the people's deputies forgot that in order to carry an oversized cargo or move on an oversized vehicle, you need to obtain a permit, and the obligation to obtain it in accordance with the norms of laws and relevant by-law enactments is an obligement of the carrier. That means, so far, such a permit can only be obtained by the carrier, but not by any means the shipper. And if the carrier does not get such a permission, then the shipper is punished, on whose actions this situation does not depend. This is also unfair and does not meet the requirements of the Article 61 of the Constitution of Ukraine on the fact that legal responsibility is exclusively individual in nature.