CBP Says Regs Don't Bar Electronic Signatures for Broker POAs, but State Rules May Vary
Federal regulations don't prohibit the use of electronic signatures for a customs broker power of attorney, but some state regulations governing agency relationships may, CBP told the National Customs Brokers & Forwarders Association of America in a July 16 ruling posted by the NCBFAA. Sandler Travis lawyer Lenny Feldman requested a ruling from CBP on behalf of the NCBFAA on the validity of electronically signed POAs. CBP previously said it was working on the issue (see 2103040012).
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CBP regulations require a broker to obtain a valid POA from a client before transacting customs business. “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,” the agency said. It also said “that CBP statutes and regulations do not prohibit the use of electronic signatures for a customs broker POA.” Additionally, another federal statute “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,” it said.
While the POAs aren't banned on a federal level, state laws may differ, CBP said. “We highlight that the question in the instant case differs from those where CBP interprets its requirements under a federal statute or similar authority,” it said. “Similarly, the question asked in this ruling request differs from those where CBP interprets its own regulatory established requirements.”
A review of state provisions found that “while in most states an electronic signature should be permitted, some states, such as New York and possibly Minnesota, have some restrictions,” the NCBFAA said in an email. “We encourage customs brokers to ensure their POAs, electronic or 'wet,' meet the requirements for the applicable state law.” The trade group plans to seek clarification on whether CBP would “invalidate otherwise legally sufficient POAs based on the application of state law; or simply leave that issue to the transacting parties should it arise, again recognizing that neither CBP laws nor regulations cover the binding of two parties through an agency relationship.”