Actual problems of legal regulation of innovations in the activities of a temporary storage warehouse

Shkiperov Anton Aleksandrovich ORCID: 0000-0003-0411-6513 Assistant to the President of the Fishery Shipowners Association (FCA) Advisor to the General Director, Association of business partners in the sphere of foreign economic activity (ABP FEA) 12 Trubnaya str., Moscow, 107045, Russia Shkiperov@fsarf.ru Other publications by this author     Kallaur Ruslan Rostislavovich Director, SVH LLC "TLC "Belyi Rast" 141870, Russia, Moscow region, Dmitrov, S. Bely Rast str. 111. r.kallaur@brterminal.ru

Kleimenova Anastasiya Nikolaevna PhD in Law Associate Professor, Department of Customs Law, GKOU HE "Russian Customs Academy" 140015, Russia, Moscow region, Lyubertsy, Komsomolsky Prospekt str., 4 a.shashkina@customs-academy.ru

Currently, with the strengthening of regional trade blocs, the development of the institutional, organizational and legal environment for conducting cross-border trade, as well as in the context of sanctions and political confrontation between individual countries and the resulting violations of traditional supply chains, acceleration, simplification and cheapening (the so-called trend-Y) of operations and formalities related to the organization of delivery of goods, are becoming increasingly relevant among the trends in the development of modern foreign economic activity. For example, logistics costs for certain categories of goods can be up to 50% of their wholesale cost. ^[1]

Trend-Y in most cases has a number of objective advantages both for participants in foreign economic activity (hereinafter referred to as participants in foreign economic activity) and for customs authorities. For business, such advantages, for example, may consist in speeding up customs operations, reducing costs, minimizing the risk of making formal legal and other mistakes by the personnel of business entities, etc. For customs authorities – in the optimal distribution of the burden on officials, ensuring an increased level of transparency of the activities of foreign trade participants for the purposes of state control, etc.

In this regard, the study of the problems of substantiation and development of innovative solutions in the field of foreign economic activity is particularly important from the point of view of finding optimal ways to ensure a balance of interests of the state and business, the achievement of which is the basis for improving legal regulation in the customs sphere. 

Since the trend comes from the economy, directly affects the spheres controlled by the state, and also provides for subsequent fundamental changes in the legal relations between the participants of foreign economic activity and customs authorities, such transformations involve overcoming a number of difficulties. Thus, most of the projects of innovations in the field of activity of foreign trade participants undergo a long procedure of preliminary, including informal coordination with administrative authorities, there is often a need to ensure an increased level of interaction (including information and technical) between customs authorities and foreign trade participants, compliance with additional requirements by business, etc. In addition, there is often an imperfection of legal support, in connection with which an additional obstacle to the introduction of innovations in the field of foreign economic activity will be the overcoming of such legal gaps. Finally, the transformation of the economic environment in most cases entails the strengthening of state control (supervision). 

Currently, an integral part of the supply chain is a temporary storage warehouse (hereinafter referred to as the SVH), where temporary storage of goods is provided, and the owner of the SVH (a participant in foreign economic activity) is a person engaged in activities in the field of customs. This activity is based on direct, continuous and multilateral cooperation with customs authorities and is regulated in the most detail by customs law. In this regard, innovative transformations in the activities of the SVH most fully reflect the above problems. 

The subject of this study, therefore, is the legal regulation of promising innovative technologies intended for use in the activities of a temporary storage warehouse. 

 SVH is a complex structure that occupies a specially designated and equipped territory for the purpose of providing services for the temporary storage of goods. In addition, the CBH is a platform for completing and organizing the application of customs procedures, performing customs and other operations ^[2] Despite the fact that the urgency of the CBH's activities is largely due to a favorable geographical and logistical location ^[3], a significant factor ensuring the competitiveness of the CBH as a commercial organization integrated into market processes is continuous improvement of the storage system of goods, including through the introduction of new information technologies, equipping the SVH with modern equipment, etc. ^[4,5] Meanwhile, taking into account the specifics of the legal status of the SVH, the effectiveness of its functioning also depends significantly on the control over its activities, including in terms of the implementation by customs authorities of the control and supervisory function, restrictions and the requirements stipulated by the customs legislation. ^[6]

For example, in the case of equipment of a temporary storage warehouse with an automated cellular storage system for goods, a number of additional (specific) requirements are imposed on such a storage facility, along with the requirements common to all storage facilities, among which are "the availability of an electronic system for the placement and accounting of goods compatible with software products used by customs authorities and allowing the customs authority in real time, monitor the placement and location of goods in cells, as well as the conduct of inspections, measurements, recalculations, weighing of goods by SVH employees and persons with authority over goods, with the determination of the date and time of these operations" (Order of the Federal Customs Service of Russia dated February 10, 2021 No. 111 "On approval of the requirements for the arrangement, equipment, location of a customs warehouse equipped with an automated cellular storage system for goods, and the adjacent territory to it"). Despite the fact that effective management of warehouse operations can be crucial for the overall efficiency of the supply chain.^[7]

In addition, the existing regulatory support either does not provide for the presence of automated storage cells on the SVH as a separate, independent basis for the emergence of regulatory features (acts of the EAEU law), or assumes the location of automated storage cells only on the shelving equipment of the SVH in the appropriate premises (acts of national law of the Russian Federation). At the same time, currently in the field of foreign economic activity, which is represented by the limited liability company SVH "Terminal and Logistics Center "Bely Rast" (hereinafter LLC SVH "TLC "Bely Rast"), an initiative is being considered to use large-capacity containers located in open areas of SVH in several rows and tiers, and placement as cells in such cells of goods with different legal status.  

This initiative is economically and legally beneficial to the participants of foreign economic activity, since it allows to ensure:

- reduction of the completion time of the customs procedure of customs transit;

- rationalization of the use of free space of SVH;

- reducing the costs of the final recipient of the cargo;

- increasing the throughput (productivity) of the SVH by reducing the number of necessary logistics operations;

- acceleration of cargo handling;

- optimization of the operation of loading and unloading equipment, as well as reduction of operating costs;

- simplification of reporting;

- maximum reduction of the probability of making a mistake by the staff of the SVH and minimizing the risk of bringing to administrative responsibility;

- simplification of inventory;

- the ability to automatically analyze the turnover, etc.

For customs authorities, in turn, the following advantages are assumed:

- ensuring an increased level of transparency of the logistics processes of the container terminal for the purposes of customs control;

- optimal distribution of the burden on customs officials.

Currently, the SVH already has organizational possibilities for implementing an initiative to introduce a container-cell system for the joint storage of goods with different status. So, the address (cellular) storage of containers on the territory of LLC SVH "TLC "Bely Rast" is carried out using the software product "SOLVO.WMS" (hereinafter referred to as the program), which allows you to effectively keep records of loaded and empty containers at the terminal. Each container, in accordance with its actual location on the SVH, is assigned a unique address using the program, which allows, if necessary, to quickly and definitely determine the current location of the container or free (empty) cells (parking space).

It should be noted that at present CBCS are divided not only legally into types (open and closed) (paragraph 2 of Article 354 of Federal Law No. 289–FZ of 03.08.2018 "On Customs Regulation in the Russian Federation and on Amendments to Certain Legislative Acts of the Russian Federation"), but also in fact into other separate types that differ, among other things, depending on the type of transport served, which largely determines the infrastructural features of the SVH. This is how railway, motor transport, air transport, sea, mixed (multimodal) SVH are distinguished.  

To understand the specifics of the functioning of the cellular storage mechanism using containers, as an innovation intended to be introduced into the activities of a temporary storage warehouse, and to formulate proposals for improving the customs operation of temporary storage, it is advisable to compare the SVH serving the flow of goods carried out by road and rail transport, since the type of SVH depends on the method of implementation of the proposed innovation.

 Based on the typical placement of functional zones of the so-called motor transport SVH, attention should be paid to the following feature: significant (in comparison with the place of temporary storage of goods) the size of the adjacent territory intended for parking vehicles transporting goods during the time required to complete the customs procedure of customs transit, and de facto – a wide range of cargo operations with such goods. This feature is connected, on the one hand, with the single-modal nature of transportation by road (there is no need to carry out operations for transshipment of goods from road to other modes of transport with a different degree of cargo capacity), as well as reduced time costs associated with the transfer of information between a relatively small circle of subjects of the supply chain (carrier) and the declarant of goods, due to which within 8 hours (subparagraph 1 of paragraph 1 of Article 152 of the Customs Code of the Eurasian Economic Union (EAEU)) after registration by the customs authority of destination of the relevant documents submitted by the authorized person (paragraphs 1,3,4 of Article 118 of Federal Law No. 289-FZ dated 03.08.2018 "On Customs Regulation in the Russian Federation and on Amendments to Certain Legislative Acts of the Russian Federation") to complete the customs procedure of customs transit, the declarant "manages" to perform customs operations related to the customs declaration of goods (for example, placement under the customs procedure of release for domestic consumption), thus bypassing the placement of goods for temporary storage (that is, the so-called "customs clearance from wheels").

 In the "railway" SVH, the temporary storage place is much larger than the adjacent territory. In fact, in the vast majority of cases, due to the high time costs caused, among other things, by the informational interaction of a wide range of subjects of the supply chain (the owner of the warehouse, the forwarder, the carrier, etc.) with the declarant of goods, the declarant "does not have time" within the prescribed 12 hours (subparagraph 3 of paragraph 1 of Article 119 of Federal Law No. 03.08.2018 289-FZ "On Customs Regulation in the Russian Federation and on Amendments to Certain Legislative Acts of the Russian Federation") after registration by the customs authority of destination of the documents submitted for the completion of the customs procedure of customs transit, to carry out operations related to the customs declaration of goods. In this regard, almost all goods arriving by rail in accordance with the customs procedure of customs transit are placed, after registration of the relevant documents submitted for its completion, on the SVH for temporary storage. So, after the authorized person receives confirmation of registration by the customs authority of the documents submitted for the placement of goods for temporary storage, as well as receipt by the owner of the CBH of information from the customs authority (paragraph 4 of Appendix No. 2 of the Order of the Federal Customs Service of the Ministry of Finance of the Russian Federation dated March 18, 2019 No. 444 "On approval of the Procedure for customs operations when placing goods to a temporary storage warehouse and other places of temporary storage, during the storage and issuance of goods, the Procedure for registering documents submitted for placing goods in temporary storage and issuing a confirmation of registration of documents, the Procedure for issuing (refusing to issue) a permit to conduct operations specified in paragraph 2 of Article 102 of the Customs Code of the Eurasian Economic Union, determining the Conditions and the Procedure for issuing (canceling) a permit for temporary storage of goods in other places, the method of reporting by the owners of temporary storage warehouses and persons who have received a permit for temporary storage in temporary storage of goods, report forms, the procedure for filling them out, as well as the procedure and timing of reporting") there is an actual placement of goods on the SVH (that is, the movement of such goods from the adjacent territory to a place of temporary storage with the help of loading and unloading equipment), while the period of "necessity" of customs declaration of these goods is "extended" for 4 months (paragraph 1 of paragraph 1 of Article 101 of the Customs Code of the Eurasian Economic Union), during which goods may be temporarily stored.

Another difference between the "automobile" and "railway" SVH is the volume and nature of the necessary unloading and loading and transport operations associated with the movement of goods after their status has changed from the temporary storage of SVH to the free storage area of the terminal and (or) the adjacent territory. This difference is most indicative of the example of the product "passenger car". At the "automobile" SVH, after the release in accordance with the customs procedure of release for domestic consumption and the change of status to the "goods of the Union", passenger cars are transported independently to the required territory. Meanwhile, in the case of a "railway" SVH, unloading and loading operations and transportation operations performed according to the "richstacker - terminal tractor – richstacker" scheme are required to move these goods in containers. Thus, a much larger amount of costs (time, material, labor) is needed to carry out operations that are identical in purpose.

It is important to note that the SVH, which services goods arriving in containers by rail, and uses a cellular storage system for goods, is essentially similar to conventional warehouses. The main difference lies in the scale of storage and related features. So, in the role of the actual location of goods in the first case, containers act, in the second – pallets; in the role of cells – containers and racks; as the main loading and unloading equipment - reach stackers and forklifts.  Accounting of goods also occurs in a similar way. Thus, the urgency of reducing the costs associated with the implementation of unloading and loading operations and operations for the transportation of goods through functional zones for the "railway" SVH is extremely high.

After the release of goods in temporary storage and receipt of appropriate confirmation of such release (from the declarant – a declaration for goods with details confirming the release, from the customs authority controlling the activities of the SVH - notification (paragraph 4 of paragraph 13 of the Order of the Federal Customs Service of Russia dated March 18, 2019 No. 444 "On approval of the Procedure for customs operations when placing goods in a temporary storage warehouse and other places of temporary storage, when storing and issuing goods, the Procedure for registering documents submitted for placing goods in temporary storage and issuing confirmation of registration of documents, the Procedure for issuing (refusing to issue) a permit to conduct operations specified in paragraph 2 of Article 102 of the Customs Code of the Eurasian Economic Union of the Customs Union, determining the Conditions and Procedure for issuing (canceling) a permit for temporary storage of goods in other places, the Method of reporting by the owners of temporary storage warehouses and persons who have received a permit for temporary storage in places of temporary storage of goods, report forms, the procedure for filling them out, as well as the procedure and timing of reporting")), the SVH carries out registration and transfer to the customs authority of a report on the DO-2 form and operations for the actual delivery of goods.

At the same time, after the release of foreign goods in accordance with the customs procedure of release for domestic consumption, the status of such goods changes to the status of "goods of the Union" (paragraph 2 of Article 134 of the Customs Code of the Eurasian Economic Union). The goods of the Union are moved from the place of temporary storage to the so-called "free zone" of the railway terminal. Such a transfer is necessary primarily to free up temporary storage space for temporary storage of other arriving goods.

 Thus, after the release of foreign goods and their acquisition of the status of "goods of the Union", such goods remain within the territory belonging to one legal entity, but in zones with different legal status, which necessitates additional cargo operations to organize such movement between zones. In the event of an increase in the flow of goods, the time and material costs associated with ensuring this movement increase significantly and negatively affect the activities of foreign trade participants, in addition, such a restriction significantly reduces the "flexibility" of the SVH in terms of the throughput of the flow of goods in the event of a sharp increase.

The proposed technology of the cellular storage system of goods provides for the unification of the free zone of the terminal and logistics center, used for the storage of goods of the Union, and the temporary storage zone of the SVH, used for the temporary storage of foreign goods (hereinafter – the combined zone) under the legal regime of the former. In this case, container cells arranged in several rows and tiers will have one of three statuses reflected in the automated system "SOLVO.WMS", namely the statuses "Union goods" ("free storage"), "foreign goods" ("temporary storage") and "empty cell" (see Fig. 1). At the same time, the need for additional cargo operations related to the zonal separation of foreign goods and goods of the Union will be eliminated, and the total number of cells used for the needs of temporary storage of foreign goods will not exceed the maximum number of containers calculated based on the useful area of the SVH specified in the certificate of the SVH, and technological the existing tiered restriction of a particular SVH.

Fig. 1. Distribution of goods with different legal and functional statuses

Thus, Figure 1 reflects: the code of the row ("A"), the tier code in this row ("1"), the sequence numbers of cells (tiers) starting from the bottom ("1-4"), as well as the functional and legal statuses of goods located in a particular cell ("BX" (temporary storage), "SV" (free storage), "PS" (empty cell)).

Meanwhile, it should be noted that an important role in optimizing the activities of the SVH, as well as the carrier (open Joint Stock Company "Russian Railways") is played by ensuring the loading of empty freight trains departing from the territory of the SVH after the shipment of foreign goods placed in temporary storage. In this regard, it is worth emphasizing that the railway terminal (LLC "TLC "Bely Rast"), which owns the SVH of the same name, serves not only imported, but also export, as well as domestic (intra–union - within the EAEU) cargo. Thus, in the proposed united zone, it seems appropriate to provide for the placement of goods with the status of "goods of the Union", which acquired it as a result of placing it under the customs procedure of release for domestic consumption, but also goods with the same status, but acquired on other legal grounds (in particular, goods of the Union – fully produced (extracted, received, grown) in the customs territory of the EAEU) (subparagraph 47 of paragraph 1 of Article 2 of the Customs Code of the Eurasian Economic Union) Such goods will accordingly be loaded onto empty freight trains for subsequent transportation both within the Russian Federation (EAEU) and for departure on the territory of third countries (customs export procedure) (see Fig. 2)

Fig. 2. A typical scheme of functioning of the combined zone of SVH

The functioning of the free zone will also have a number of other features:

- preparation and submission to the customs authority of reports in the form of DO-2 in the case of the actual issuance of goods with the status of "goods of the Union" with SVH will be made by an automatic system;

- the amount of enforcement of the obligations of a legal entity operating as the owner of a temporary storage warehouse will remain unchanged when creating a combined zone. The usable area of the SVH territory for which the security has been paid, and the corresponding maximum number of containers placed on such an area, will be identical in the combined zone;

- the movement and placement of goods of the Union in the united zone (customs control zone) will take place in accordance with the order of the Federal Customs Service of Russia dated 17.01.2019 No. 45. The specified activity is connected with the functioning of the SVH and will be expressed in operations related to the export of goods or preceding such export (submission of containers placed under the customs procedure of temporary importation for loading; submission of vehicles (railway platforms) for the export of goods, etc.).

However, a significant legal obstacle to the placement of these goods in the combined zone will be its status as a customs control zone (paragraph 8 of Order No. 45 of the Federal Customs Service of Russia dated January 17, 2019 "On Approval of the Procedure for Issuing (Refusing to Issue) a Customs Authority Permit for the Movement of Goods, Vehicles, Persons, including Government Officials, across the borders of customs control zones and within them") and the restrictions provided for by such a status for conducting other economic activities.

Thus, the implementation of this initiative is associated with overcoming and the emergence of a number of legal, organizational and other problems, including:

1. Thus, in accordance with the Customs Code of the Eurasian Economic Union, the Customs Union is a place of temporary storage of goods, and its territory is a customs control zone (ZTC), where temporary storage of foreign goods takes place until they are released by the customs authority. At the same time, the ZTC have a special status, which, among other things, is provided by a special access regime across the borders of the ZTC and the regime of conducting economic activity on the territory of the ZTC (Decree of the Government of the Russian Federation No. 907-r of 24.06.2008) (a strictly defined list of persons with access to the customs control zone; permissive order of economic activity; permissive order of movement of goods vehicles and persons; the presence of administrative responsibility for violating the ZTC regime (Article 16.5. of the Administrative Code of the Russian Federation), for performing cargo or other operations with goods under customs control without permission or notification of the customs authority (Article 16.13. of the Administrative Code of the Russian Federation)  and others) Such features or restrictions can significantly hinder the access of interested persons to the released goods (goods of the Union), as well as the implementation of the necessary operations with such goods by the personnel of the SVH.

2. The certificate of the owner of the SVH indicates, among other information, information about the size of the usable area of the open area. From such sizes, the amount of security for the fulfillment of the obligation of a legal entity operating as the owner of a CBH is calculated, the provision of which is one of the conditions for the inclusion of a legal entity in the register of owners of CBH (subparagraph 1 of paragraph 5 of the Federal Law "On Customs Regulation in the Russian Federation and on Amendments to Certain Legislative Acts of the Russian Federation" dated 03.08.2018 No. 289-FZ). A cellular (container) storage system for foreign goods organized on an open site creates prerequisites for the emergence of requirements of customs authorities to declare the specified territory in the certificate of the customs Union not as an open area, but as the volume of a full-fledged room, and to pay a larger amount of security.

3. The Order of the Federal Customs Service of Russia dated 29.12.2012 No. 2688 contained a separate (VII) section, the provisions of which were fully devoted to the specifics of regulating the activities of a storage facility equipped with an automated cellular storage system for goods carried out in storage cells, including those located in cells (parking spaces) declared by the owner of such a storage facility for use as an open area on the adjacent territory of the SVH. The Order of the Federal Customs Service of Russia of 18.03.2019 No. 444 that entered into force and canceled the Order of the Federal Customs Service of Russia of 29.12.2012 No. 2688 does not contain the specified and (or) any other provisions regulating the activities of the SVH with a cellular storage system of goods.

Thus, the trend in the development of foreign economic activity in terms of administrative regulation causes both minimizing the risks of bringing foreign trade participants to administrative responsibility (by reducing the influence of the human factor on economic and other processes controlled by customs authorities, reducing the volume and simplifying legal relations between customs authorities and foreign trade participants, etc.), and improving the efficiency of state management of foreign trade an area that becomes more open, transparent and accessible for control (supervision) by administrative bodies. In addition, we agree with the position of the authors, who believe that the creation of high-tech temporary storage warehouses for various types of products, together with developed transport logistics, will contribute to a more efficient application of customs procedures, according to which the movement and use of goods coming from abroad is organized in order to further expand foreign trade operations, which, in particular In turn, it will be the basis for the growth of financial indicators, including the main indicators of profitability of organizations such as owners of SVH. ^[8] Meanwhile, the existing legal mechanisms play and will continue to play a decisive role in the development, implementation and expansion of the use of innovations in the activities of agricultural enterprises, without which it is impossible to create and further improve "intellectual" agricultural enterprises ^[9], and the economic incentives that determine the directions of foreign trade development do not always correspond to the established institutional and legal conditions of economic activity. In this regard, it is of particular importance to ensure a constructive dialogue between customs authorities and the business community ^[10], a mechanism for flexible legal response to changes in the field of foreign trade, its innovative component, the creation of a regulatory framework (by issuing relevant acts) that fully meets the needs of trade.