Updated FAQ on EU's Jan 1 Cargo Advance Data Requirement (Maritime Overview)

This summary focuses on the advance data requirements as they relate to maritime containerized traffic, including information on timing of submissions, “Do Not Load” messages, penalties, etc.

(Starting January 1, 2011, security data on inbound and outbound ocean, air, and land cargo will have to be submitted electronically and within certain timeframes before import and export. Though the advance security data requirement took effect July 1, 2009, the EU provided the trade with a transition period until December 31, 2010 during which the information submission was voluntary. See ITT’s Online Archives or 12/16/10, 09/08/10, and 06/22/09 news, 09062220, for previous BP summaries.)

Advance Data Requirements for Inbound Containerized Maritime Cargo

The following are highlights of the FAQs on advance security data requirements for inbound containerized maritime cargo entering the EU customs territory:

ENS Needed for All Goods Brought Into EC, Including FROB

Q: When is an ENS required?

A: The Community legislation requires, as a general principle, that all goods brought into the customs territory of the Community, regardless of their final destination, shall be covered by an Entry Summary Declaration (ENS), which should be lodged at the customs office of first entry, i.e. the first intended port of call within the customs territory of the Community.

This means that all cargo, whether or not consigned to the EU, must be declared, including freight remaining on board (FROB). The ENS shall be lodged at the customs office before the goods are brought into the customs territory of the Community.

ENS Must Be Lodged at Least 24 Hours before Loading in Foreign Port

Q: When must the ENS be lodged?

A: The Community legislation requires that the ENS for deep-sea containerized shipments, i.e, for voyages to the EU whose duration is over 24 hours, must be lodged at least 24 hours before commencement of loading in the foreign load port. Other deadlines apply for other shipping services and other modes of transport. (See FAQ for other deadlines/modes.)

Carrier Is Responsible for “Lodging” ENS for Maritime Cargo

Q: Who must lodge the ENS?

A: The Community legislation requires that the ENS ...shall be lodged by the person who brings the goods, or who assumes responsibility for the carriage of the goods into the customs territory of the Community. This means the operator of the active means of transport on or in which the goods are brought into the customs territory of the Community -- “the carrier - is responsible for the filing of an ENS. In the deep sea container context, this is held to be the ocean carrier that issues bill of lading for the carriage of the goods into the EU.

However, in the case of vessel sharing (VSA) or similar contracting arrangements, the obligation to file an ENS lies with that carrier who has contracted, and issued a bill of lading or an air waybill, for the carriage of the goods into the Community on the vessel or aircraft subject to the arrangement. So, each party which issues bill of lading for carriage of goods on the vessel is deemed to be the ocean carrier and must file the ENS for the containers it is having carried on the vessel.

Freight Forwarders Can File ENS with Consent of Carrier

Q: Are freight forwarders obligated to file ENS for those shipments for which they have issued (house) bills of lading?

A: The EU cargo security legislation is based on the premise that only one ENS may be lodged for each shipment. The ocean carrier is responsible that an ENS filing is made, but may give its consent that a 3rd party, e.g. a freight forwarder, files instead. In that case, the ocean carrier may not make an ENS for the shipment covered by the 3rd party’s alternative ENS filing. This may mean that the customs office of first entry will get advance cargo security information for a particular shipment either at the “master” Bill of Lading level (ocean carrier) or at the “house” Bill of Lading level (freight forwarder), not both.

NVOCCs Can Also File ENS with Carrier’s Consent

Q: Can parties (other than a freight forwarder) that issue their own (house) bills of lading (referred to in the international liner shipping industry as NVOCC) file an ENS instead of the ocean carrier?

A: Yes, provided that it is with the knowledge and consent of the ocean carrier. Firstly, European law does not distinguish between "NVOCCs" and forwarders that merely act as agents. Second, the European security legislation explicitly allows any 3rd party to file - with its knowledge and consent - the ENS instead of the carrier.

(Note that an October 29, 2010 working document states that freight forwarders, customs agents, etc. that hold Authorized Economic Operator (AEO) certificates and are involved in the importation of goods on behalf of holders of AEO certificates may lodge ENS comprising reduced data in certain situations. http://ec.europa.eu/ecip/documents/procedures/import_entry_guidelines_en.pdf.)

May Base ENS on Known Data from Master Bill of Lading

Q: Can the ocean carrier rely on the information in the master Bill of Lading to populate the data fields in the ENS? What if a freight forwarder is identified both as the shipper and the consignee in the master Bill of Lading?

A: Whoever lodges the ENS, this person (the declarant) is responsible for its content, accuracy and completeness. However, the declarant is only obliged to provide the information known to it at the time of lodgement of the ENS. Thus, the declarant is entitled to base its ENS filing on data provided by its trading or contracting parties. Consequently, an ocean carrier would be able to rely on the information in its master Bill of Lading to populate the data fields in the ENS even if this means that a freight forwarder is identified as both the consignor and the consignee.

ENS Will Not Replace Traditional Manifest Filing, Even If Some Data Overlaps

Q: Will ENS replace the manifest filing? If not, what about the relationship between ENS and manifest?

A: The ENS will not replace the traditional manifest filing in each discharge port. The ENS is for cargo risk assessment purposes, and even though the manifest may include the same information as the ENS, manifests must in addition include data elements prescribed by transport legislation in each EU Member State that the vessel is calling at. Customs authorities may require that the manifest includes a reference to an ENS, where applicable, in order to establish the relationship between the manifest and the ENS. Also, according to Community legislation, the summary declaration for temporary storage must include a reference to the ENS; a summary declaration for temporary storage may take the form of the manifest provided that it contains the particulars of a summary declaration including a reference to any ENS for the goods concerned.

Communicating “Do Not Load” Messages

Q: How will customs communicate that a "Do Not Load" (hold) is removed and that the cargo can be safely loaded / released?

A: This will be up to each individual customs administration to arrange. Regarding holds, nothing will change from existing practice, where customs -- based on the manifest reporting -- may have targeted a shipment for inspection at discharge and then, upon inspection, lift the hold.

DNL Messages Only Apply to Deep Sea Containerized Cargo

Q: Are there "Do Not Load" messages for types of maritime cargo other than containerized cargo covered by the 24hrs prior to loading rule for filing of an ENS?

A: No. The DNL functionality applies only to deep sea containerized cargo; there is no DNL message functionality for break bulk cargo, where the carrier only needs to lodge the ENS no later than 4 hours prior to arrival in the first port of entry in the EU, or for short sea cargo, where the deadline is 2 hours before arrival.

If ENS Not Filed in Time, National Penalties Could Apply

Q: If the ocean carrier -- for whatever reason - failed to lodge an ENS in time, what will the consequences be?

A: Article 184c paragraph 2 of Commission Regulation 1875/2006 provides that: “If an economic operator lodges the [ENS] after the deadlines provided for in Article 184a, this shall not preclude the application of the penalties laid down in the national legislation”. Any such penalties would be imposed according to the national customs legislation of the Member State in which the customs office of first entry is located.

(Note that the updated FAQ does not have a separate question on the data elements that must be included in the ENS, but the EC’s previous (undated) FAQ directed the trade to Annex 30A of the Customs Code Implementing Provisions (CCIP), as this annex describes all of the data elements that must be included in the ENS.

Required data elements listed in Annex 30A include: name and address of shipper and consignee; name and address of notify party where goods are carried under a negotiable “to order” bill of lading; per cargo item description; container number, 4 (or more) digit HS codes; number of packages; gross weight per cargo item; seal number; UN dangerous code; transport charges method of payment code.)

Advance Data Requirements for Outbound Containerized Maritime Cargo

The following are highlights of the FAQs on advance security data requirements for outbound containerized maritime cargo leaving the EU customs territory:

Exit Summary, Other Declaration Needed for Goods Leaving Customs Territory

Q: Why are exit summary declarations required?

A: The amended Community legislation requires, as a general principle that all goods brought out of the customs territory of the Community, regardless of their final destination, shall be subject to risk analysis and customs control, primarily for security and safety purposes, before departure or -- in the case of containerized maritime shipments -- before commencement of vessel loading. All such goods must therefore be covered by a declaration of some kind -- either a customs declaration, e.g. for export (i.e. the customs treatment of Community goods that are taken out of the customs territory), re-export (i.e. the customs treatment of non-Community goods that are taken out of the customs territory), transit etc., or, wherever any of the former is not required, an exit summary declaration (EXS).

Exit Summary Declaration Needed If No Other Customs Declaration

Q: When are exit summary declarations required?

A: Most goods leaving the EU will be covered by either a customs declaration for export, reexport, outward processing or transit. EXS are only required, under Articles 842a-842e CCIP, for other goods -- that is all goods, with certain specified exemptions, which are to be brought out of the EU but for which a customs declaration is not required.

Carrier, Exporter, Forwarder, Etc. Can Lodge EXS

Q: Who must lodge the exit summary declaration?

A: There is a key difference from imports and ENSs (ENS), in that no legal obligation is placed upon the ocean carrier, or any other particular party, to lodge the exit summary declaration. The Community legislation requires that the EXS shall be lodged either‘...by the person who brings the goods, or who assumes responsibility for the carriage of the goods out of the customs territory of the Community’, i.e. the carrier, or‘...any person who is able to present the goods in question or to have them presented to the competent customs authority...’, i.e. the exporter, a forwarder, a terminal operator, or anyone else with a commercial interest in the goods or a representative of any of these.

There is, therefore, no legal obligation placed upon the ocean carrier to lodge the EXS, or to ensure that it is lodged, within the time limit. Article 182d (3) CC provides for an option, not an obligation for any specific party. As a practical matter, however, the carrier will, as has always been the case, not be able to load, or remove, the goods without the permission of the customs authorities.

Data Elements to Include in EXS, Can Rely on Known Info in Bill of Lading

Q: What must be declared in the EXS?

A: Annex 30A Table 1 CCIP sets out the data elements to be included in the EXS. Whoever lodges the EXS, this person (the declarant) is responsible for its content, accuracy and completeness. However, the declarant is only obligated to provide the information known to it at the time of the lodgement of the EXS. An ocean carrier would thus be able to rely on the information in its bill of lading to populate the data fields in the EXS.

(Note that the data elements listed in Annex 30A Table 1 to be included in the EXS are similar to those for imports, including the consignor, consignee, product description, gross weight, etc.)

EXS Must Be Lodged 24 Hours Before Loading in EU Port

Q: When must the EXS be lodged?

A: The Community legislation requires that the EXS for deep-sea containerized shipments on voyages from the EU whose duration is over 24 hours, must be lodged at least 24 hours before commencement of loading in the EU load port. (Other deadlines apply for other shipping services and other modes of transport, e.g. 4 hours before departure for other non-containerized deep sea maritime sectors; for all short sea shipping sectors the dead line is 2 hours before departure from the EU load port.)

EXS Will Not Replace Member Country Export Manifest Filing, Could be Waived by Country

Q: Will EXS replace the export manifest filing? If not, what about the relationship between EXS and export manifest?

A: The EXS will not replace the traditional export manifest filing in each load port common to many EU Member States. However, a national customs administration may waive the requirement to lodge an EXS provided that the export manifest for those shipments contains the relevant EXS data. Such a waiver would be pursuant to national customs legislation. A national customs administration could instead, again pursuant to national legislation, require that the export manifest includes a reference to an EXS, where applicable, in order to establish the relationship between the manifest and the EXS. Such a reference could be the container number, but could also be customs’ registration number of the EXS or - - in the case of non Community goods in short term transshipments - the registration number (the so-called MRN) of the ENS.

Failure to Timely Lodge EXS Would Result in Not Loading, Possible National Penalties

Q: If the ocean carrier -- for whatever reason - failed to lodge an EXS in time, what will the consequences be?

A: As explained above, there is no legal obligation on any particular party to lodge the EXS. The consequence will normally be that release for loading/exit will simply not be granted. Article 842d (3) CCIP provides that: “If the person lodges an exit summary declaration after the deadlines specified in Articles 592b and 592c, this shall not preclude the application of the penalties laid down in the national legislation”. Any such penalties would be imposed according to the national customs legislation of the Member State acting as the customs office of exit. It should be noted, however, that Article 842d (3) also prescribes that the customs authorities may, in cases where goods for which an EXS is required are presented for export loading without an EXS having been lodged, require the ocean carrier to lodge one immediately.

Further EC information on the advance security data requirements, updated 12/15/10, available here.

EC Regulation No. 1875/2006 (which contains Annex 30A of the CCIP), dated 12/18/06, available here.