Recent Trade & Tariff Perspectives

September 14, 2022  |  Jeff Simpson  Director of Compliance

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Export and Import Powers of Attorney—Are They the Same?

The short answer to this relatively simple question? No. Export and import powers of attorney are not the same and cannot be used interchangeably. Believe it or not, this is a concept that is very much misunderstood across the industry among many exporters and importers. The fact is, the various Federal Agencies that control imports, or conversely exports, have vastly different requirements. In fact, one set of regulations does not even require a power of attorney (POA) at all, but more on that in a bit.

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What is a POA?

First, let us quickly explore what a POA is. In general terms, a POA is a legal document that allows a designated person (or entity) to make legal decisions or representation on the behalf of the person signing the POA. In our world, a POA is more specifically designed toward customs clearance (conducting customs business) for imports and the reporting of Electronic Export Information (EEI) for exports.

What about customs requirements?

Customs POAs are covered under U.S. Customs Regulations, 19 CFR Subpart C (§ 141.31 to 141.46) and 19 CFR § 165.3. As per 19 CFR § 141.46 (power of attorney retained by customhouse broker):

“Before transacting Customs business in the name of his principal, a customhouse broker is required to obtain a valid power of attorney to do so. He is not required to file the power of attorney with CBP. Customhouse brokers shall retain powers of attorney with their books and papers, and make them available….”

This means a customs POA must be on file before a customs broker can transact customs business on behalf of the importer. This is specific to imports and must be signed by an officer of the corporation.

What do we need for exports?

Export POAs are not covered under 19 CFR, are managed very differently, and have unique requirements. For exports, the requirements are found in 15 CFR Part 30—the Foreign Trade Regulations (FTR) which is under U.S. Census. For example, 15 CFR § 30.1 defines a power of attorney as:

“A legal authorization, in writing, from a USPPI [United States Principal Party in Interest] or FPPI [Foreign Principal Party in Interest] stating that an agent has authority to act as the principal party's true and lawful agent for purposes of preparing and filing the EEI [Electronic Export Information] in accordance with the laws and regulations of the United States.”

The critical piece of the above is the part stating, “an agent has authority to act as the principal party's true and lawful agent for purposes of preparing and filing the EEI.” In an export POA, it must clearly state that the forwarder has the authorization to prepare and file EEI. Without this specific authorization—which is almost never found in a Customs POA—we, as an agent, cannot file on a USPPI’s behalf.

To complicate things further, 15 CFR §30.3 (Electronic Export Information filer requirements, parties to export transactions, and responsibilities of parties to export transactions) lays out each party’s responsibilities in an export transaction, including the requirements for obtaining an export POA. For example, 15 CFR §30.3(c)(2)(ii) states:

“The agent, when authorized by a USPPI to prepare and file the EEI for an export transaction, is responsible for performing the following activities…Obtaining a power of attorney or written authorization from the USPPI to file the EEI.”

This is where things start to get interesting for exports. Just as with an import POA, an export POA must be signed by an officer of the corporation. However, note the wording in 30.3 (c)(2)(ii), that states, “Obtaining a power of attorney or written authorization.” This means for exports, we have options aside from a POA, specifically the use of a forwarder generated Shipper’s Letter of Instruction (SLI) or other form of written authorization, which are acceptable options for exports.

More about the SLI

An SLI’s main purpose is really to serve as a communication tool between the exporter and freight forwarder about the particulars of that shipment. However, if you look closely at the wording of a freight forwarder issued SLI, you will find specific wording authorizing. that forwarder to, “prepare and file the EEI” for that specific shipment. That is the written authorization required under the FTR, and SLIs are generally not signed by an officer of the corporation.

Based on this specific language in the FTR, a POA may not be needed to fulfill these regulatory requirements. The use of an SLI on a shipment-by-shipment basis may be appropriate. Perhaps the exporter wants to have a long term POA on file, while others prefer to have a standing SLI or Letter of Authorization to File signed by someone else in the corporation who is not an officer. These are all compliant if that specific authorization to file EEI is explicitly called out.

Conclusion

As we have seen, even in this very high-level explanation, there are marked differences between import and export POAs. Import and export POAs (or authorizations) are not interchangeable and the wording in each are specific to the particular set of regulations that govern the activity to be undertaken (i.e., “import filings” or “export filings”). All parties involved must understand the key differences between the two distinct sets of regulations and how all parties can be compliant depending on their specific circumstances and business model.

Have additional questions, or require further assistance with this or any other customs and trade matters? Connect with one of our trade policy experts to learn more.


Our information is compiled from a number of sources that to the best of our knowledge are accurate and correct. It is always the intent of our company to present accurate information. C.H. Robinson accepts no liability or responsibility for the information published herein.

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