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HQ 561968

August 20, 2002

MAR-05 RR:CR:SM 561968 NL


Port Director
U.S. Customs Service

RE: Protest No. 1101-00-100158 ; Validity of Certificate of Origin; 19 CFR §181.22(b)(2); Power of Attorney; Opportunity for Correction; 19 CFR §181.22(c)

Dear Port Director:

This office has considered the application for further review of Coastal Eagle Point Oil Co. (Coastal) regarding the above-referenced protest. Our decision follows.


The protest concerns a shipment of crude oil claimed to be eligible for preferential tariff treatment under the North American Free Trade Agreement (NAFTA) as a product of Canada. The basis of the claim was that the crude was wholly obtained from the Hibernia field in Canadian offshore waters. At issue in this protest is the sufficiency of the Certificate of Origin.

The crude was imported at the Port of Philadelphia on February 11, 2000, under a declared claim of NAFTA Preference as a good of Canada. The exporter was Mobil Canada. The importer of record was Coastal Eagle Point Oil Company (Coastal).

On March 9, 2000, Customs requested that Coastal submit a Certificate of Origin for the shipment, as well as proof of the date that Coastal Eagle first received the certificate.

The protest record indicates that in response to this request Coastal Eagle supplied a document, dated February 6, 2000, styled as a “Certificate of Origin”. The document was signed by an official of Newfoundland Transshipment Limited and issued on the letterhead of that entity. Coastal Eagle advised in its memorandum accompanying the Protest that Newfoundland Transshipment Limited is the operator of the terminal at St. John’s, Newfoundland, through which Mobil Canada Midstream Services exported the crude oil in question. The document was not on Customs Form 434, and subsequent inquiries indicated that the alternative format had not been approved by Customs.

The document stated that the consignor was Mobil Canada Midstream Services, and that the consignee was Mobil Sales and Supply Corp. to the order of Coastal States Trading, Ltd. The document included a certification that “the goods originated in one or more of the parties, and comply with origin requirements specified for those goods in the North American Free Trade Agreement..”

The Protestant asserts that it received the “Certificate of Origin” by fax on February 6, 2000. It was used together with related documents at importation on February 11, 2000, in support of Coastal’s declaration of eligibility for NAFTA preferential treatment.

On March 22, 2000, Customs issued a CF 29 Notice of Action to Coastal Eagle stating that the “Certificate of Origin” was not acceptable because in its alternative format it did not contain the same information as set forth in the uniform CF 434. Customs also stated that the certificate must be executed by the exporter or by a party with a power of attorney from the exporter.

This March 22, 2000 CF 29 Notice further advised that Coastal’s NAFTA claim would be denied if Coastal failed to provide a valid Certificate of Origin. Customs warned that unless a valid certificate was submitted within five days, the NAFTA claim would be denied. The Notice specified that “a corrected Certificate must be received by this office within 5 working days (by COB March 29, 2000).”

On March 29, and within the time period requested by Customs, Coastal Eagle submitted a CF 434 dated March 28, 2000, and executed by the Crude Oil Operations Manager of ExxonMobil. ExxonMobil is the parent company of Mobil Canada Midstream Services. This CF 434 indicated that the exporter was not the producer, and that its claim was based on all three of the grounds indicated on the instructions to the CF 434: the exporter’s knowledge of qualifying status; the exporter’s reliance on the producer’s written representations; and a completed and signed Certificate of Origin supplied by the producer.

On March 31, Customs by a CF 29 Notice of Action advised Coastal Eagle that its NAFTA claim was denied. Customs stated that the resubmitted Certificate was invalid because it was not signed by the exporter of record. The CF 6445A prepared in connection with this protest also stated that the document was invalid because the signatory did not have a power of attorney.

The Protestant argues that the February 6, 2000, “certificate” was sufficient. The Protestant’s supporting memorandum suggests that the document’s format was approved by Canadian authorities. This office has not found any confirmation of such approval. Protestant further argues that Customs is without authority to require person executing a certificate on behalf of an exporter to possess a power of attorney. Cited is 19 CFR §181.22(b), which provides that a certificate may be executed by “the exporter’s authorized agent having knowledge of the relevant facts”.

The Protestant subsequently submitted a letter from Mobil Midstream stating that Newfoundland Transshipment Limited had knowledge and was authorized to execute the “certificate” that Customs had found to be in unapproved format.

Finally, in connection with the CF 434 dated March 28, 2000, the Protestant supplied a memorandum executed by ExxonMobil Refining & Supply Corp. confirming that the Crude Oil Operations Manager of ExxonMobil was an authorized agent of the exporter, Mobil Canada Midstream with respect to the shipment that is the subject of this protest, and “had full knowledge of the relevant facts.” The memorandum indicated that the authorization was pursuant to an interaffiliate agreement among the ExxonMobil entities.


Whether the Certificate of Origin submitted by the importer-Protestant in response to Customs instructions was valid.


This entry was liquidated on April 24, 2000. The Protest was timely filed on July 24, 2000.

The NAFTA Certificate of Origin is established by the Parties to the Agreement pursuant to Article 501 of the NAFTA. Section 205(b)(1)(B) of the NAFTA Implementation Act (19 USC §1508(b)(1)(B)) provides that:

The term "NAFTA Certificate of Origin" means the certification, established under article 501 of the North American Free Trade Agreement, that a good qualifies as an originating good under such Agreement.

The corresponding regulation, at 19 CFR 181.22(b)(1), requires that the Certificate shall be on CF 434, or on another form approved by the Canadian or Mexican Customs administrations, or on another form or in a medium approved by U.S. Customs.

The Certificate of Origin (Customs Form 434) is used by the exporter to certify that a good qualifies as an originating good for purposes of preferential tariff treatment under the NAFTA. The form includes fields for, among other things: the name and address of the producer, importer and exporter; the shipment or blanket period for which preferential treatment is claimed; a description of goods; the preference criterion; the Harmonized System tariff classification number; the country of origin; the authorized signature; and the date of signature. The instructions for the CF 434 also call for the exporter, if he is not the producer, to provide in Field 8 the basis for his knowledge or reliance that the good qualifies as originating.

In this protest, the “certificate” initially submitted was not in compliance with the applicable Customs Regulations. It was not on CF 434, nor was it on any other approved form or medium. The data provided on the nonconforming form was not equivalent in substance to the data normally provided on the CF 434 Certificate of Origin. This office therefore finds that Customs officials properly rejected this “certificate”.

It is noted, however, that notwithstanding these deficiencies the evidence shows that the document was in the possession of the importer on the date of importation, at which time the importer made its claim of NAFTA eligibility for the Hibernia crude oil.

In other recent Protest Review Decisions Customs has ruled that documents such as the instant “certificate”, in unapproved format and not containing key required data, did not give rise to an obligation by Customs to afford the importer an opportunity to submit a corrected document. See, e.g., HQ 562097 (July 17, 2002); HQ 562188 (July 30, 2002). The irregular document submitted in the instant protest suffered from similar deficiencies.

However, on March 22, 2000, in its CF29 Notice proposing to deny NAFTA treatment, Customs offered the Protestant five days in which to submit a valid or corrected Certificate of Origin. Manifestly, this was the opportunity for correction set forth in 19 CFR §181.22(c), which provides:

If the port director determines that a Certificate is illegible or defective or has not been completed in accordance with paragraph (b) of this section, the importer shall be given a period of not less than five working days to submit a corrected Certificate.

Having provided such an opportunity in this case, Customs committed itself to full consideration of the validity of a Certificate of Origin submitted in response to its notice.

The remaining issue for consideration is therefore whether the document submitted by the Protestant on March 29, 2000 on CF 434 was valid and complete. On March 31, 2000, Customs rejected this document because it was not supported by a power of attorney executed prior to the time the CF 434 was executed by the officer of ExxonMobil.

As noted above, the Protestant argues correctly that a person executing a CF 434 on behalf of an exporter is not required to be in possession of a power of attorney for the Certificate to be valid. The requirements of execution are satisfied when, as provided at 19 CFR §181.22(c), a certificate is valid provided it is executed in accordance with the requirements of 19 CFR §181.22(b), and “shall be accepted by the port director as valid” That latter section does not require execution of a power of attorney.

Nonetheless, Customs would have been within its authority to inquire whether the person executing the CF 434 on behalf of the exporter had the requisite authority and knowledge, as required under 19 CFR §181.22(b)(2). Equally, Customs would have been within its authority to require the importer to provide satisfactory evidence that the person executing had the requisite authority and knowledge. In this case, however, Customs immediately denied NAFTA eligibility instead of offering the Protestant an opportunity to resolve the issues of authority and requisite knowledge to Customs’ satisfaction. This action had the consequence of denying NAFTA eligibility for the shipment when eligibility was supported by a valid CF 434.

In support of this Application for Further Review the Protestant has shown that the person executing the CF 434 had the required authority and knowledge of the relevant facts. The memorandum prepared by ExxonMobil and submitted to this office by the Protestant is accepted as sufficient evidence of this. The memorandum states that the officer of ExxonMobil, through an interaffiliate agreement, had authority and knowledge to execute the NAFTA Certificate of Origin for the shipment in question on behalf of Mobil Canada Midstream Services. Therefore, there was no deficiency in the CF 434 dated March 28, 2000, and submitted to Customs on March 29, 2000, pursuant to Customs’ invitation to submit a valid, corrected Certificate of Origin. The CF 434 dated March 28, 2000 was prepared and submitted pursuant to the correction procedures set out in 19 CFR §181.22(c). The person executing has been shown to have had the requisite authority and knowledge. Inasmuch as this CF 434 was prepared pursuant to a Customs request for correction, the fact that it is dated after the date of importation and claim for NAFTA preference is entirely appropriate.

In light of the foregoing, NAFTA preferential treatment should have been allowed for the subject importation.


This protest should be ALLOWED.

In accordance with Section 3A(11)(b) of Customs Directive 099 3550-065, dated August 4, 1993, this decision and the Customs Form 19 are to be mailed to the protestant no later than sixty days from the date of this letter. Any reliquidation of the entry or entries in accordance with the decision must be accomplished prior to mailing the decision. Sixty days from the date of the decision, the Office of Regulations and Rulings will make the decision available to Customs personnel, and to the public on the Customs Home Page on the World Wide Web at www.customs.gov, by means of the Freedom of Information Act, and other methods of public distribution.


Myles B. Harmon
Acting Director

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