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HQ 562040

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July 17, 2002

MAR-05 RR:CR:SM 562040 NL

CATEGORY: CLASSIFICATION

Port Director
U.S. Customs Service
2ND AND CHESTNUT STREETS
PHILADELPHIA, PA 19106

RE: Protest Nos. 1101-00-1-00194, 1101-00-100247; Validity of NAFTA Certificates of Origin; Power of Attorney

Dear Port Director:

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

FACTS:

The first protest, 1101-00-100194, concerns crude oil imported by Coastal at Philadelphia on April 15, 2000. The exporter was Petro-Canada, on behalf of Norsk Hydro. The producer was the Petro-Canada Hibernia partnership, a Petro-Canada subsidiary. It is not disputed that the oil was from the Hibernia field offshore Newfoundland, Canada. The importer was initially designated as Sun International, but through an exchange agreement the load was transferred to Coastal Eagle Point prior to importation by Coastal Eagle.

The disputed issue is the validity of the Certificate of Origin.

Upon Customs’ request dated May 14, 2000, Coastal supplied a CF 434 executed by an official of Petro-Canada dated April 13, 2000. This was a blanket certificate covering the period April 1, 2000 through May 31, 2000. The certificate indicated that the crude oil was wholly obtained or produced entirely in the territory of Canada. Facsimile markings on the document establish that it was received by Coastal on the date of execution, April 13, 2000.

The Protestant indicates that it was immediately advised by Customs that the CF 434 was unacceptable because it was not executed by a person with a power of attorney from the exporter. The Protestant caused Petro-Canada to reissue the certificate, this time dated April 26, 2000, executed by an officer of Petro-Canada who was said to have “signing authority”. We understand this to mean a power of attorney. However, this officer’s authority to exercise a power of attorney was not explicitly confirmed until Petro-Canada issued a letter dated May 16, 2000.

Customs construed this sequence of events to mean that the person executing the certificate did not have “signing authority”, i.e., a valid power of attorney, until May 16, 2000, and therefore both the April 26 certificate and the prior April 13 certificate were invalid.

Protestant maintains that the April 13 certificate was entirely sufficient because Customs was without authority to require that the person executing possess a power of attorney.

The facts with regard to the second protest, No. 1101-00-100247, are as follows: following an importation on May 4, 2000, Customs requested the certificate of origin. Coastal supplied a copy of a certificate on CF 434 dated April 26, 2000, executed by an official of Petro-Canada covering the period January 1, 2000 to December 31, 2000. The Certificate named Petro-Canada as both the exporter and producer. Customs did not demand a corrected reissuance, but on August 25, 2000, issued a CF 29 stating that NAFTA preference was denied because the signatory of the April 26 certificate did not acquire “signing authority” until May 16, 2000.

ISSUE:

Whether an otherwise valid Certificate of Origin is invalid due to the absence of a power of attorney demonstrating the authority of the signing official to execute the Certificate.

LAW & ANALYSIS:

The requirements governing the execution and validity of NAFTA Certificates of Origin are set out in Article 501 of the NAFTA and §181.21 et seq., Customs Regulations (19 CFR 181.21-23).

Article 501 of the NAFTA provides that the exporter shall execute a Certificate of Origin for any exportation of a good for which an importer may claim preferential tariff treatment in another NAFTA country.

With respect to Certificates of Origin submitted for goods imported into the United States, §181.22(b)(2) of the Customs Regulations (19 CFR 181.22(b)(2)) states that the Certificate of Origin “(s)hall be signed by the exporter or by the exporter’s authorized agent having knowledge of the relevant facts”.

The Regulations do not specifically require an authorized agent to hold a formal power of attorney for this purpose. Therefore, if the agency relationship and knowledge of the relevant facts are present, the Certificate of Origin would be validly signed by the agent of the exporter.

With regard to the instant protests there has been provided no basis to question the authority of the officials of the exporter/producer to execute the Certificate of Origin on behalf of Petro-Canada. Equally, there is no basis to doubt that the signing officials had reason to know that the imported crude oil qualified as originating in Canadian territory.

The CF 434’s executed by officers of Petro-Canada, the exporter/producer, and submitted by the importer, were validly executed NAFTA Certificates of Origin. There being no indication in the protest files that the signers of the Certificates initially submitted did not have authority, or did not have knowledge of the relevant facts attested to, the protests should be allowed.

HOLDING:

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

Sincerely,

Myles B. Harmon
Acting Director

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