CLA-2 OT:RR:CTF:VS H256731 HkP
Brett Ian Harris, Esq.
Pisani & Roll LLP
Attorneys at Law
1629 K Street, NW
Suite 300
Washington, DC 20006
RE: Binding Ruling Request; NAFTA Certificates of Origin Executed by U.S. Employees On Behalf Of its Canadian Subsidiary; Power of Attorney; 19 CFR § 181.22; 19 CFR § 141.31
Dear Mr. Harris:
This is in response to your letter, dated August 15, 2014, on behalf of your client S.C. Johnson & Son, Inc. (“SCJ”) located in the United States. You have requested that we issue a binding ruling on the ability of SCJ employees to execute North American Free Trade Agreement (“NAFTA”) Certificates of Origin on behalf of its wholly-owned Canadian subsidiary. You have advised that the request pertains to prospective importations and does not involve a transaction currently pending before U.S. Customs and Border Protection (“CBP”).
FACTS:
According to the information submitted, SCJ is an international corporation with operations in over 70 countries. Many of the products imported by SCJ are manufactured in Canada by the company’s wholly-owned subsidiary, S.C. Johnson & Son, Ltd. in Ontario (“SCJ Canada”).
Historically, SCJ Canada personnel with first-hand knowledge of the relevant production processes completed and executed NAFTA Certificates of Origin for goods imported into the United States. Now, SCJ Canada has authorized two SCJ employees, each holding the position of “Global Trade Compliance Lead,” located at the company headquarters in Wisconsin, to sign NAFTA Certificates on SCJ Canada’s behalf. Specifically, the Vice President and General Manager of SCJ Canada, pursuant to authority granted by the Board of Directors, has issued two separate Powers of Attorney to two SCJ employees, authorizing them to: (1) execute and deliver NAFTA Certificates of Origin by and on behalf of SCJ Canada, and (2) execute any documents, statements or notices related to the export from Canada or the import into the United States of any good produced by SCJ Canada. The Powers of Attorney further provide that the named employees have knowledge of and information concerning the daily operations of SCJ Canada, including manufacture, sales, and shipment, and that each employee has responsibility for gathering and reporting financial and other operating information regarding SCJ Canada as a wholly-owned subsidiary of SCJ.
SCJ Canada intends for the two employees named in the Powers of Attorney to issue and sign NAFTA Certificates of Origin (blanket and shipment-specific) on behalf of SCJ Canada. Consistent with the Powers of Attorney, SCJ Canada would be listed as the “Company” in Box 11b of the Certificate, and the “Title” in Box 11d would indicate “SCJ Global Trade Compliance Lead as Agent for SCJ Canada.” In addition, SCJ Canada would be listed as both the Producer and the Exporter on the Certificates.
ISSUE:
Whether SCJ U.S. employees may complete and execute NAFTA Certificates of Origin for SCJ Canada pursuant to Powers of Attorney granted by SCJ Canada.
LAW AND ANALYSIS:
In connection with a claim for preferential tariff treatment for a good under the NAFTA, a U.S. importer must make a formal declaration that the good qualifies for such treatment. Except in specified instances, the declaration must be based on a complete and properly executed original Certificate of Origin, or a copy thereof, which is in the possession of the importer and which covers the good being imported. See Section 181.21(a), CBP Regulations (19 CFR § 181.21(a)). A Certificate of Origin shall be accepted by the port director as valid, provided that the Certificate is completed, signed, and dated in accordance with the requirements of 19 CFR § 181.22(b). See 19 CFR § 181.22(c). In turn, Section 181.22(b) requires that the Certificate of Origin: be on CBP Form 434, another approved form, or in another format approved by CBP; be signed by the exporter or by the exporter’s authorized agent having knowledge of the relevant facts; and, be in English or the language of the country from which the good is exported.
CBP has previously found that an officer of an exporting corporation who has knowledge of the relevant facts may sign a Certificate of Origin because he or she is acting as the authorized agent of the exporter. As a basic principle of corporate law, “officers of a private corporation do not have a franchise in their offices; they are agents and representatives of the corporation.” 18 C.J.S. Corporations § 468 (1990). Furthermore, employment is prima facie evidence of an agency relationship: “The nature of the business of a corporation determines a general agent’s authority, and prima facie it is coextensive with his employment.” See HQ 562134, dated June 13, 2002. CBP has also found that there is no specific requirement that an authorized agent of 19 CFR 181.22 (b)(2) must hold a formal power of attorney in order to complete a NAFTA Certificate of Origin. See HQ 562040, dated July 17, 2002. In HQ 562040, a blanket NAFTA certificate of origin executed by an official of the exporter was found to be valid, despite not being executed pursuant to a power of attorney.
An exporting corporation may also establish an agency relationship with another person who has knowledge of the relevant facts in order to complete Customs documents by executing a power of attorney. See 19 C.F.R. § 141.31 et. seq. See also section 648 of the North American Free Trade Agreement (NAFTA) Implementation Act, Pub. L. No. 103-182, 107 Stat. 2057, 2207 (Dec. 8, 1993) (expanding the term “customs business” to include preparation of documents or forms in any format intended to be filed with the Customs Service in furtherance of such activities). In HQ 562134, the signor of the NAFTA Certificate of Origin was an employee of the importer, not the exporter as is required under 19 CFR 181.22(b). However, because the Certificate was executed pursuant to a Power of Attorney granted by the exporter that was in effect at the time the NAFTA claim was made, and the signor had full knowledge of the relevant facts, CBP found that the signor was an authorized agent of the exporter.
In this case, SCJ Canada is the exporter and producer and is legally separate from SCJ, the importer. SCJ Canada has issued two Power of Attorneys to SCJ employees, certifying that these individuals have the knowledge and information concerning the daily operations of SCJ Canada necessary to execute NAFTA Certificates of Origin by and on behalf of SCJ Canada. Applying 19 C.F.R. § 141.31 et. seq. to these facts, we find that the employees of SCJ may execute NAFTA Certificates of Origin on behalf of SCJ Canada, pursuant to the Powers of Attorney granted by SCJ Canada.
HOLDING:
Based on the provisions of 19 C.F.R. § 141.31 et. seq., employees of SCJ may execute NAFTA Certificates of Origin on behalf of SCJ Canada, pursuant to the Powers of Attorney granted by SCJ Canada.
A copy of this ruling letter should be attached to entry documents filed at the time the goods are entered. If the documents have been filed without a copy, this ruling should be brought to the attention of the CBP officer handling the transaction.
Please note that 19 C.F.R. § 177.9(b)(1) provides that "[e]ach ruling letter is issued on the assumption that all of the information furnished in connection with the ruling request and incorporated in the ruling letter, either directly, by reference, or by implication, is accurate and complete in every material respect. The application of a ruling letter by a Customs Service field office to the transaction to which it is purported to relate is subject to the verification of the facts incorporated in the ruling letter, a comparison of the transaction
described therein to the actual transaction, and the satisfaction of any conditions on which the ruling was based."
Sincerely,
Monika R. Brenner, Chief
Valuation and Special Programs Branch