What to do when the Producer is NOT the Exporter

A frequently asked question pertains to certification of origin under NAFTA, when the exporter is not the producer of the goods. The NAFTA legislation does not place a legal requirement on a producer who is not an exporter to do anything! Other than the Certificate of Origin and a “Written representation”, there is no formal statement or format specified in the agreement to cover this situation. Chapter 5, Section A, Article 501 of the NAFTA reads, in part:

3. Each Party shall:

(a) require an exporter in its territory to complete and sign a Certificate of Origin for any exportation of a good for which an importer may claim preferential tariff treatment on importation of the good into the territory of another Party; and
(b) provide that where an exporter in its territory is not the producer of the good, the exporter may complete and sign a Certificate on the basis of
(i) its knowledge of whether the good qualifies as an originating good,
(ii) its reasonable reliance of the producer’s written representation that the good qualifies as an originating good, or

(iii) a completed and signed Certificate for the good voluntarily provided to the exporter by the producer.

Subsection (iii) is clearly the strongest position from a compliance perspective. However, when producers who are not the exporter decline to provide a Certificate, the legislation, equally clearly, does not require them to do so. The production of a formal Certificate of Origin is the sole responsibility of the exporter. The production of a Certificate by anyone other than the exporter is on a voluntary basis only. Subsection (i) would rarely stand up to a verification audit and we recommend that this only be used in extreme situations and under rigid controls. This brings us to subsection (ii) and, as stated above, there is no formal statement or format provided in the legislation to define the term “written representation”. It is our recommendation that the term is best defined as a letter and the following is our suggested text for this purpose:

“This letter is written to certify, in accordance with the North American Free Trade Agreement (NAFTA), Chapter 5, Section A, Article 501, subsection 3 (b) (ii) that the following good(s) / the goods identified on the attached list, qualify as