USMCA Implementation: Changes to NAFTA Rules of Origin, Certification, and Procedures Effective July 1, 2020

Update: The USMCA has entered into force and replaced the NAFTA.  On June 30, 2020, U.S. Customs and Border Protection published its “USMCA: Final Implementation Instructions.” 

Original Post from June 20, 2020:

The USMCA—North America’s new preferential trade agreement—replaces the NAFTA on Wednesday, July 1, 2020.  The new agreement will change the way North American importers claim benefits on North American-originating goods, and attention to these changes is necessary to ensure compliance with U.S. customs law.  For example, U.S. importers should be aware that:

• The USMCA allows for preferential treatment claims on U.S.-origin goods.  Under the NAFTA, such claims were not allowed.
• Unlike the NAFTA, the USMCA does not require that a good qualify to be marked as a product of Canada or Mexico to receive preferential treatment, so long as the USMCA Rules of Origin are satisfied.
• Making post-importation preference claims under the USMCA will no longer exempt an importer from Merchandise Processing Fees (MPF). Under the NAFTA, post-importation claims were exempt from MPF.

U.S. Customs and Border Protection (CBP) recently published its “USMCA Updated Interim Implementing Instructions,” which include instructions for preparing certificates of origin and claiming preferential treatment under the USMCA.  To comply with the new law, importers should take the following actions before July 1^st:

1. Rules of Origin – Review the new USMCA rules to determine if products qualify for preferential treatment.
2. Certification – Create new origin certificates that satisfy the USMCA Minimum Data Elements (Annex 5-A) requirements.
3. Recordkeeping – Understand the two sets of recordkeeping requirements for USMCA (1) Claims and (2) Certification of Origin.

While the USMCA automobile regional content rules have received the lion’s share of attention, it is important to be aware that all sectors will be impacted by the new agreement.  Additional details on each of the above topics are provided below.  We encourage you to contact CLK with any questions that your business may have about the new requirements.

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Rules of Origin

In many cases, the old NAFTA rules of origin have changed.  For some goods, regional value content (RVC) rules have been removed; for others, they have been added.

Importers should review the USMCA Annex 4-B Product Specific Rules of Origin to determine if their goods qualify for preferential treatment under the new agreement.  Beginning July 1, 2020, General Note 11 to the Harmonized Tariff Schedule of the United States (HTSUS) will contain both the general and specific rules of origin, definitions, and related provisions for USMCA goods.  Importers may claim USMCA treatment by using a Special Program Indicator (“S” or “S+”) on entry documentation.

If you have questions about whether your good qualifies as an originating good under the USMCA, CLK can assist.

Certification Requirements

CBP will not accept NAFTA certificates of origin after June 30, 2020.  Importers should prepare now to begin using new USMCA certificates beginning July 1, 2020.

The USMCA benefits traders by providing more flexibility for the preparation and format of origin certifications than existed under NAFTA.  Under the new agreement, the importer may make a claim for preferential tariff treatment based on a certification of origin completed by the importer, the exporter, or the producer, for purposes of certifying that the good qualifies as a USMCA-originating good.  Blanket certifications for multiple importations of identical goods within a maximum 12-month period are allowed.

All certifications must contain the following statement and nine data elements set out in the USMCA Annex 5-A: “I certify that the goods described in this document qualify as originating and the information contained in this document is true and accurate. I assume responsibility for proving such representations and agree to maintain and present upon request or to make available during a verification visit, documentation necessary to support this certification.”

1. Whether the Certification is prepared by the importer, exporter, or producer
2. Certifier identity – including name, title, address, country, telephone, and email address
3. Exporter identity– including name, title, address, country, telephone, and email address
4. Producer identity (confidential treatment optional) – including name, title, address, country, telephone, and email address
5. Importer identity – including name, title, address, country, telephone, and email address
6. Description and the 6-digit HTSUS tariff classification of the good
7. Origin criteria (A, B, C, or D)
8. Blanket period (12-month maximum)
9. Authorized signature and date

Recordkeeping

The USMCA includes two separate sets of recordkeeping requirements for (1) duty preference claims and (2) Certification of Origin.  Both rules require that parties keep documentation for no less than 5 years from the date of entry.

Claims: For importers who claim preferential treatment under the USMCA, the following records are required:

1. Records and supporting documentation related to the importation;
2. All records and supporting documents related to the origin of the good (including any certifications or copies thereof); and
3. Records and supporting documentation necessary to demonstrate compliance with transit and transshipment provisions in Article 4.18 of the Agreement.

Certification of Origin: For any exporter or producer to completes a certification of origin, the records and supporting documents must show the following:

1. The purchase, cost, value, and shipping of, and payment for, the good or material;
2. The purchase, cost, value, and shipping of, and payment for, all materials, including any indirect materials, used in the production of the good or material; and
3. The production of the good in the form in which is exported or the production of the material in the form in which it was sold.

Enforcement and Importer Protections

During the initial six-month implementation period, CBP will focus on education and outreach to support USMCA compliance.  We expect that CBP will provide numerous training opportunities, including web-based training, and CLK stands ready to assist our clients with compliance matters.

CBP has indicated that it may exercise restraint in enforcement during initial implementation, so long as importers are making good faith efforts to comply with the rules.  Additionally, CBP has stated that an importer will not be subject to penalties for making an incorrect USMCA claim if the importer, in accordance with the prescribed regulations, corrects the error within 30 days of discovery and pays any duties and MPF owed to CBP.

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If you have any questions about the new USMCA and the impact of the July 1^st entry-into-force date on your business operations, do not hesitate to ask.

Additional information about CBP’s implementation and outreach activities are available on the CBP USMCA Portal.  The full text of the USCMA is available on the Office of the U.S. Trade Representative’s website.