By: Bruce H. Leeds, Of Counsel

Most attention and articles about Certificates of Origin concentrate on completion and accuracy of free trade agreement (FTA) certificates of origin for imports into the U.S. for NAFTA, Korea Free Trade, etc. How about for exports to FTA countries?  Is your company signing off on certificates of origin for exports?  If so, who is doing the signing?  Do they know what they are signing?  Who is watching the store?

You can probably put this in the category of “one more thing to worry about”, however it could be categorized as another way to add value.

Many companies have a shipping function that takes care of documenting and forwarding exports, and an export control function that handles export licenses and exceptions.  These employees are good at what they do, but are not necessarily knowledgeable about FTA rules of origin.  It is a rare company that has personnel that look after FTA eligibility and documentation for exports.

Let’s start by stating that FTAs apply to exports as well as imports.  The rules of origin and documentation are very similar if not the same.  Under most FTAs the Customs authorities in the receiving countries have the right to ask for supporting documentation for U.S. exports under FTAs, and may even have the right to audit certificates of origin issued by the U.S. exporter.

A request for a certificate of origin from a foreign customer will likely go to Contracts or Business Development.  It may even go to Shipping to sign off on as part of the export documentation package.  Have these functions had training for rules of origin requirements for FTAs, or are they simply signing off on a document put in front of them?

What is needed is to get this process under control before it comes back to haunt you.  A knowledgeable person (most likely an import compliance employee), should be made the point of contact for all FTA certificate of origin requests.  That way a person familiar with the specific rules of origin can check the requests against the procurement, inventory and manufacturing records to ensure the export qualifies.  They can also keep back-up records in case the foreign Customs authorities come calling.

Here are some suggested internal controls for export FTA certificate of origin compliance:

Control environment

• A statement that it is the policy of the company to comply with export and import laws and regulations
• A position or function assigned to FTA requirements and given resources and training for this job

Risk assessment

• Does the company export to FTA countries?
• Has the company executed certificates of origin for FTAs?

Control activities

• Procedures for review and execution of FTA certificates of origin
• Maintaining supporting records for certificates of origin

Information & communication

• Providing awareness training to company functions on FTA certificates of origin
• Access to foreign contracts and requests from foreign customers for certificates of origin

Monitoring

• Review of export documents to determine if FTA certificates of origin were issued
• Review certificates of origin to ensure they are complete and accurate

If you are an import compliance person this certainly sounds like taking on some more work.  On a positive note, you are providing a valuable service to your company for which you will (hopefully) be recognized and rewarded.  On a less positive note, if anything happens you are going to get stuck with the job anyway.