H297978

90 K Street, N.E., Washington, D.C. 20229-1177 U.S. Customs and Border Protection HQ H297978 July 16, 2021 OT:RR:CTF:ER H297978 ECG Mr. Lenny Feldman Sandler, Travis & Rosenberg, P.A. 5835 Blue Lagoon Drive, Suite 200 Miami, FL 33126 Re: Use of Electronic Signatures on a Customs Broker Power of Attorney Dear Mr. Feldman: This is in response to the request dated May 8, 2018, submitted on behalf of the National Customs Broker and Forwarders Association of America, Inc., pursuant to 19 C.F.R. § 177.1 regarding the validity of an electronically signed customs broker power of attorney (“POA”) for U.S. Customs and Border Protection (“CBP”) purposes. FACTS You describe that a customs broker will obtain a customs broker POA from a client before transacting customs business in its name. You further indicate this POA would be signed electronically by the principal. Additionally, you state that the POA would be capable of retrieval upon lawful request or demand by CBP because the POA would be maintained in the same manner as a POA is currently maintained when received with a “standard” non-electronic signature. You also state that the electronically signed POA would be in a readable format. Your request does not further elaborate as to how the electronic signature is created and obtained; how the electronic signature is protected from being altered; or how the electronic signature identifies the person executing it. ISSUE: Whether the use of electronic signatures on a customs broker POA is permitted. LAW AND ANALYSIS In general, before transacting customs business on behalf of a client, a customs broker is required “to obtain a valid power of attorney to do so.” See 19 C.F.R. § 141.46. Furthermore, a broker must maintain the POA with its records, but is not required to file the POA with CBP, but rather make the POA available upon request by CBP. See id.; 19 C.F.R. § 111.25. Additionally, CBP regulations provide that “[a] power of attorney may be executed for the transaction by an agent or attorney of a specified part or all of the customs business of the principal.” 19 C.F.R. § 141.31(a). A customs broker may use Customs Form (“CF”) 5291 or a general POA with unlimited authority or a limited POA as explicit in its terms and executed in the same manner as a CF 5291 to grant the authority to conduct customs business on another’s behalf. See 19 C.F.R. § 141.32. However, neither CBP statutes nor regulations further elaborate as to what constitutes a “valid” POA, nor whether electronic signatures are permitted to execute the document. Importantly, a customs broker POA is an agreement between two parties, neither of which is CBP. A customs broker POA agreement establishes an agency relationship between the broker, agent, and its client, the principal, whereas CBP merely requires that a broker obtain a valid POA from its client before transacting business in the client’s name and maintain that POA as part of the broker’s records. See 19 C.F.R. § 141.46. Laws that establish requirements for and govern POA agreements are set by state agency and contract law. See e.g., In re Bentley, Case No. 6:17-bk-00294-KSJ, 2018 Bank, LEXIS 770, 2018 WL 1318951, *6 (Bankr, M.D. Fla. Mar. 8, 2018) (interpreting the validity of a power of attorney during a bankruptcy proceeding). Neither CBP’s statutes nor regulations cover the binding of two private parties through an agency relationship. Each state has its own laws governing POAs, with some adopting the model law, the Uniform Power of Attorney Act of 2006, which we refer to for illustrative purposes. See Uniform Law Commission, Uniform Power of Attorney Act (2006) available at https://www.uniformlaws.org/committees/community-home?CommunityKey=b1975254-8370-4a7c-947f-e5af0d6cb07c. This model law provides that “‘sign’ means, with present intent to authenticate or adopt a record: (A) to execute or adopt a tangible symbol; or (B) to attach to or logically associate with the record an electronic sound, symbol, or process.” See id. at Art. 1, Sec. 102. Concerning the execution of a POA, the model statute further provides that the POA “. . . must be signed by the principal or in the principal’s conscious presence by another individual directed by the principal to sign the principal’s name on the power of attorney. A signature on a power of attorney is presumed to be genuine if the principal acknowledges the signature before a notary public or other individual authorized by law to take acknowledgments.” See id. at Art. 1, Sec. 106. However, what constitutes a “valid” POA execution in a specific circumstance is determined by the law of that state. We highlight that CBP statutes and regulations do not prohibit the use of electronic signatures for a customs broker POA. Furthermore, we note that 15 U.S.C. § 7001 generally provides that an electronic signature used in foreign and interstate commerce shall not be denied legal validity solely on the basis of its electronic form. However, a state statute, regulation, or other rule of law may limit or modify the requirements of 15 U.S.C. § 7001 and certain states’ power of attorney laws expressly provide that the state’s laws supersede 15 U.S.C. § 7001. See 15 U.S.C. § 7002(a); see e.g., Ky. Rev. Stat. § 457.450 (2021). Additionally, we highlight that the question in the instant case differs from those where CBP interprets its requirements under a federal statute or similar authority. Similarly, the question asked in this ruling request differs from those where CBP interprets its own regulatory established requirements. For instance, CBP previously determined that the use of electronic bitmap signatures on NAFTA Certificates of Origin constituted valid signatures within the requirements of 19 C.F.R. §§ 181.11(b) and 181.22(b). See HQ 563436 (Sept. 15, 2006). In that case, CBP interpreted regulations it promulgated to implement its certificate of origin requirements under NAFTA, which differs from POA requirements set at the state level. HOLDING: Whether electronic signatures are permitted for use on a customs broker POA is determined by the applicable state’s law governing the execution of POAs. However, neither CBP statute nor regulations prohibit the use of an electronic signature on a customs broker POA provided that it otherwise constitutes a valid POA between the broker and client and is capable of production upon CBP request. 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.” If any fact in the transaction varies from the facts stipulated to herein, this decision shall not be binding on CBP, as provided for in 19 C.F.R. § 177.9(b). Sincerely, Gail G. Kan, Chief Entry Process and Duty Refunds Branch

Whether electronic signatures are permitted for use on a customs broker POA is determined by the applicable state’s law governing the execution of POAs. However, neither CBP statute nor regulations prohibit the use of an electronic signature on a customs broker POA provided that it otherwise constitutes a valid POA between the broker and client and is capable of production upon CBP request. 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.” If any fact in the transaction varies from the facts stipulated to herein, this decision shall not be binding on CBP, as provided for in 19 C.F.R. § 177.9(b).Sincerely,Gail G. Kan, ChiefEntry Process and Duty Refunds Branch