CBP to Consider If Electronic Signature Allowed by State Law in Overall POA Assessment, Agency Says

CBP recently added a frequently asked questions page to its website on electronic signatures on customs broker powers of attorney (POAs), indicating that it's up to brokers and their clients to determine whether electronic signatures are allowed under the relevant state law, and noting that parties may include a choice of law clause to ensure an electronic signature is legal.

“The parties who enter a POA may determine whether to include a choice of law clause in their POA,” the agency said. “CBP’s assessment as to whether a broker has obtained a 'valid' POA is a fact-specific determination. A POA’s choice of law provision would be one fact among others used in CBP’s determination.”

CBP had issued a ruling in July 2021 that said electronic signatures are not barred by any federal laws or regulations, but that some state laws might not allow them (see 2107270039). The National Customs Brokers & Forwarders Association of America subsequently sought clarification on whether CBP would invalidate electronically signed POAs where if found the state law did not permit an electronic signature.

“CBP is not a party to the POA agreement and cannot revoke (cancel) the agreement between those two parties,” the agency said in the new FAQ. However, the agency will consider the electronic signature in its overall determination on the validity of a POA. “CBP may request the production of a broker’s POA with its client and can assess whether the POA is ‘valid,’” it said. “This is a fact-specific determination, and the use of an electronic signature is one element among others used in CBP’s assessment.”

Brokers should review their POAs to indicate they are construed according to the laws of a state that recognizes such electronic signatures, NCBFAA Customs Counsel Lenny Feldman said in an alert on the new FAQ April 18. While an electronic signature should be permitted in some states, some states have restrictions in place, the NCBFAA said.