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HQ 562097

July 17, 2002

MAR-05 RR:CR:SM 562097 NL


Port Director
U.S. Customs Service

RE: Protest Nos. 1101-00-100259; Validity of NAFTA Certificate of Origin; Opportunity for Correction of Illegible, Incomplete or Defective Certificates of Origin

Dear Port Director:

This office has considered the application for further review of Tosco Refining L.P. (Tosco) of the above-referenced protest. The decision of this office follows.


This protest concerns the importation by Tosco of a shipment of crude oil at the Port of Philadelphia under a claim of eligibility for duty-free treatment under the North American Free Trade Agreement (NAFTA). Entry was made on January 28, 2000, at which time Tosco declared on the CF 7501 that the crude oil was a product of Canada. The invoice identified the good as “Bulk Hibernia Crude Oil” and the shipper as Mobil Canada Midstream.

The protest record indicates that subsequent to importation Tosco submitted in support of its NAFTA claim a document styled “North American Free Trade Agreement Certificate of Origin”, issued on the letterhead of Hibernia Management and Development Co. It is understood that this entity has an interest in the Hibernia crude transportation and sale operations offshore Newfoundland, Canada. The document indicates that loading was completed on January 24, 2000.

The document was not prepared on CF 434, nor was it on any other form approved by Customs. The data elements provided did not conform with Customs requirements. Among other omissions, there was no representation of the basis under which the crude qualified for NAFTA preference., i.e., by reason of being wholly obtained or entirely produced in Canadian territory. The document identifies the exporter as Mobil Canada Midstream Services, but there is no designation of the producer of the crude oil. The document does not, as required for proper execution of the CF 434, indicate whether the exporter’s certification is based on his knowledge, the producer’s written representation or a certificate executed by the producer. Finally, the document as included in the protest record was not signed or dated.

There is evidence from the faxsimile traffic markings that Tosco was in possession of this document at the time of importation.

The protest file also contains a CF 434 pertaining to this shipment dated June 2, 2000. The certificate is executed by an official of Mobil Canada Midstream as the exporter and indicates Tosco as the importer. It is a blanket certificate covering the period from January 5, 2000 through December 31, 2000. It appears that the Protestant Tosco submitted this CF 434 to Customs after its execution on June 2, 2000.

On July 19, 2000, Customs issued a CF 29 Notice of Action denying NAFTA preferential treatment for the imported crude oil. The explanation indicated that the NAFTA certificate (the subsequent CF 434 dated June 2, 2000) was not valid for the importation made on January 28, 2000, because it was not executed until June 2, 2000. This office understands that the decision was based on 19 CFR 181.22(b), which provides that a claim of preferential tariff treatment is to be made on the basis of a Certificate of Origin which is in the possession of the importer at the time of making the claim.

The Protestant Tosco, while conceding deficiencies in the initial “certificate” prepared by Hibernia Management and Development Co., submits that it should have been afforded an opportunity to submit a corrected certificate. Tosco points to 19 CFR 181.22, which provides in part:

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.

The Protestant Tosco submits that denial of its claim for preferential treatment on the grounds stated in the CF 29 Notice of Action is inconsistent with the obligation of Customs to permit correction of a defective certificate.


Whether an unexecuted document that lacks certain data elements triggers the requirement that a person claiming NAFTA originating status for a good be given five days to correct defects in a NAFTA Certificate of Origin.


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 such other form as 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 on CF 434, nor was it on any other approved form or medium. In addition to nonconformity as to 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.

There are differences to be noted between the Hibernia Management and Development Co. “certificate” and a properly executed CF 434. The following items are missing from the former:

Exporter’s address and tax ID number (Block 1) Producer’s name, address and tax ID number (Block 3) Importer’s address and tax ID number (Block 4) HS tariff classification (Block 6)
Preference criterion (Block 7)
Whether the exporter is the producer (Block 8) The country of origin

Other defects include the lack of a dated signature, the omission of the basis for the exporter’s knowledge that the good is originating, and the actual form of the certification, which is not in conformity with CF 434.

In view of these differences, it must be concluded that the Hibernia “certificate”, although apparently in the possession of the importer Tosco at the time of its claim of preferential tariff treatment, was not valid as a NAFTA Certificate of Origin. It was not approved by either the Mexican or Canadian Customs administrations. For these reasons, it was not equivalent in substance, or even nearly so, to a properly executed CF 434. This office therefore finds that Customs officials properly considered the Hibernia “certificate” to be invalid for the purposes of supporting the claim of NAFTA originating status in this protest.

The Protestant Tosco has in general terms conceded defects, but argues that the defects in the Hibernia “certificate” were correctable. Further, Tosco believes Customs was required under 19 CFR §181.22(c) to afford Tosco not less than five days in which to correct and present a valid Certificate of Origin.

In this Protest, however, as set forth above, the "certificate" initially submitted was not a NAFTA Certificate of Origin within the meaning of Article 501 of the NAFTA, 19 U.S.C. §1508(b)(1)(B) of the NAFTA Implementation Act, and 19 CFR §181.22-23. Accordingly, the document was not a NAFTA Certificate of Origin amenable to correction or cure of defects as provided in 19 CFR §181.22(c). That provision does not endorse creation of entirely new documents, but merely allows for adjustment of NAFTA Certificates of Origin invalid for reasons of illegibility, error in execution of instructions, or omissions. It is evident that the exporter in executing the Hibernia “certificate” was not following applicable instructions. In consequence of that approach, the omissions were so numerous that the Hibernia “certificate” was not equivalent in substance to a NAFTA Certificate of Origin. Appropriately, therefore, the Hibernia “certificate” does not benefit from the opportunity embodied in 19 CFR 181.22(c) to make amends for errors or omissions resulting from clerical errors or bona fide errors of fact.

On the basis of our finding that the Hibernia “certificate” was not a correctable NAFTA Certificate of Origin, nor substantially equivalent in substance to such Certificate of Origin, we find further that the importer Tosco was not in possession of a such a Certificate at the time it made its claim for preferential tariff treatment under the NAFTA. Accordingly, Customs officials properly denied NAFTA preferential tariff treatment for imported good.


This protest should be DENIED.

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.ustreas.gov, by means of the Freedom of Information Act, and other methods of public distribution.


Myles B. Harmon
Acting Director

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