4.1 Right to Make Entry and Customs Power of Attorney

4.1 Right to Make Entry and Customs Power of Attorney

Quick Answer: Under 19 U.S.C. § 1484, 19 CFR 141.11, and CBP Customs Directive 3530-002A, entry of imported merchandise may be made only by the "owner" or "purchaser" of the goods, or by a licensed customs broker designated by that owner or purchaser under a valid Customs Power of Attorney (POA). Nominal consignees, freight forwarders, and transportation intermediaries lack legal standing to make entry or designate a customs broker on behalf of the importer unless they hold a proprietary financial interest in the goods or hold an unbroken chain of valid customs POAs from the actual owner or purchaser. Furthermore, under 19 CFR 141.34, a POA executed by a partnership is statutorily limited to a maximum duration of two (2) years from the date of execution, whereas corporate POAs remain valid indefinitely until revoked in writing upon receipt by CBP under 19 CFR 141.35.

The Statutory Foundation: 19 U.S.C. § 1484 and 19 CFR 141.11

Under Section 484 of the Tariff Act of 1930, as amended (19 U.S.C. § 1484), Congress established that imported merchandise into the customs territory of the United States can only be declared and entered by an authorized Importer of Record (IOR). The statute specifies that the IOR must be:

1. The owner of the merchandise;
2. The purchaser of the merchandise; or
3. A customs broker licensed under 19 U.S.C. § 1641, when designated by the owner, purchaser, or consignee.

Codified in 19 CFR 141.11, these provisions prevent unauthorized third parties from introducing goods into U.S. commerce, declaring customs values, asserting tariff classifications, or incurring bond liabilities. The legal relationship between the party entering the goods and the underlying commercial transaction determines whether CBP will accept the entry filing or reject it as an unauthorized submission.

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CBP Customs Directive 3530-002A: Defining Owner and Purchaser

To standardize field enforcement across all U.S. ports of entry and Centers of Excellence and Expertise (Centers), CBP issued Customs Directive 3530-002A ("Right to Make Entry"). The directive establishes precise legal standards defining who qualifies as an owner or purchaser:

1. The Owner of Merchandise

An owner is defined as any person or business entity that has a proprietary financial interest in the imported goods at the time of entry. This includes:

• A party that has legal title to the merchandise;
• A manufacturer importing its own raw materials or finished goods;
• A party that has taken possession of goods on consignment, provided they bear the financial risk of loss or sale.

2. The Purchaser of Merchandise

A purchaser is defined as the person or entity that has contracted to buy the goods in a bona fide commercial transaction for exportation to the United States. Key qualifications include:

• The purchaser must be an active party to the purchase contract;
• The purchaser may be a U.S. resident or a foreign nonresident entity;
• A party that simply transfers funds without a contractual purchase commitment or without assuming title/risk does not qualify as a purchaser.

3. Nominal Consignees and the Prohibition on Freight Forwarders

One of the most heavily tested principles on the Customs Broker License Exam (CBLE) involves nominal consignees. A nominal consignee is an entity (such as a freight forwarder, express courier, consolidator, or warehouseman) whose name appears on an ocean bill of lading or air waybill solely for the purpose of receiving cargo delivery or coordinating domestic transportation, without having any financial interest in the merchandise.

CRITICAL EXAM DOCTRINE: Under 19 CFR 141.11 and Directive 3530-002A, a nominal consignee or freight forwarder has NO legal right to make entry on its own behalf. An unlicensed freight forwarder cannot act as the Importer of Record. Furthermore, an unlicensed freight forwarder cannot execute a Customs Power of Attorney appointing a customs broker on behalf of the ultimate importer. A licensed customs broker may only make entry if authorized directly by the actual owner or purchaser, or if the freight forwarder is itself a licensed customs broker holding a valid POA from the owner that expressly confers authority to delegate to a subagent (19 CFR 141.43).

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Evidentiary Proof of Right to Make Entry (19 CFR 141.11 – 141.16)

Before CBP permits the release of merchandise, the filer must demonstrate documentary evidence establishing the right to make entry. Title 19 CFR Part 141 authorizes four primary forms of evidence:

Absence of Commercial Documents: Bond to Produce Bill of Lading

Under 19 CFR 141.15, if an importer cannot produce an original bill of lading or carrier's certificate at the time of entry summary, the port director may permit entry upon the execution of a bond on CBP Form 301. The bond amount must equal one and one-half times the invoice value of the merchandise. The importer must produce the missing original bill of lading or release order within the statutory period to cancel the bond condition.

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Customs Power of Attorney (19 CFR Part 141, Subpart C)

A Customs Power of Attorney (POA) is a formal legal instrument by which a principal (importer, owner, or purchaser) authorizes an agent (licensed customs broker) to conduct customs business on the principal's behalf. Customs business includes preparing and filing entry documentation, classifying goods, appraising transaction value, paying duties, and submitting administrative protests under 19 U.S.C. § 1641 and 19 CFR Part 111.

Form and Execution (19 CFR 141.31 – 141.33)

• Approved Formats: A customs POA may be executed on CBP Form 5291 (Power of Attorney) or in a commercial format containing the equivalent legal powers (19 CFR 141.32). For a noncommercial shipment, the shorter alternative form in 19 CFR 141.33 may be used.
• Retention and production: The broker must retain the power of attorney and produce it on CBP demand (19 CFR 141.46). Do not confuse the customs POA with CBP Form 5297, which is the Corporate Surety Power of Attorney — the instrument by which a surety company appoints an attorney-in-fact to execute bonds on its behalf. Form 5297 has nothing to do with an importer's appointment of a broker.
• Scope of Authority: A POA may be general (authorizing all customs business across all U.S. ports) or limited (restricted to specific transaction types, entry ports, or time horizons).

Entity-Specific Execution Requirements

The validity of a POA depends strictly on the legal structure of the principal:

                                  ┌────────────────────────────────┐
                                  │    Principal Entity Analysis   │
                                  └───────────────┬────────────────┘
                                                  │
         ┌────────────────────────┬───────────────┴───────────────┬────────────────────────┐
         ▼                        ▼                               ▼                        ▼
┌─────────────────┐      ┌─────────────────┐             ┌─────────────────┐      ┌─────────────────┐
│   Corporation   │      │   Partnership   │             │   Nonresident   │      │   Individual /  │
│ (19 CFR 141.37) │      │ (19 CFR 141.34) │             │ (19 CFR 141.36) │      │   Sole Prop     │
├─────────────────┤      ├─────────────────┤             ├─────────────────┤      ├─────────────────┤
│ • Executed by   │      │ • STRICT 2-YEAR │             │ • Resident agent│      │ • Executed by   │
│   officer       │      │   MAX DURATION  │             │   for service of│      │   individual    │
│ • Pres, VP, Sec,│      │ • Must name all │             │   process req'd │      │ • Valid until   │
│   Treasurer     │      │   general       │             │ • Nonresident   │      │   revocation,   │
│ • No seal req'd │      │   partners      │             │   corp: officer │      │   death, or     │
│   (unless state)│      │ • Limited prtnrs│             │   signature &   │      │   incapacity    │
│ • Indefinite    │      │   exempt if agmt│             │   acceptance    │      │ • Indefinite    │
│   validity      │      │   attached      │             │ • Indefinite    │      │   validity      │
└─────────────────┘      └─────────────────┘             └─────────────────┘      └─────────────────┘

1. Resident Corporations (19 CFR 141.38)

• Governing section: Powers of attorney executed by resident corporations are governed by 19 CFR 141.38. Section 141.37 addresses additional requirements for nonresident corporations — a citation frequently swapped in distractors.
• Authorized Officers: A corporate POA must be executed by a duly authorized corporate officer: President, Vice President, Secretary, or Treasurer.
• Corporate Seal: A corporate seal is not required unless mandated by the law of the state of incorporation.
• Non-Officer Signatories: If an employee who is not an officer (e.g., Director of Logistics or Supply Chain Manager) signs the POA, the document is legally void unless accompanied by a certified copy of a Corporate Resolution from the Board of Directors explicitly delegating power of attorney signature authority to that individual.
• Duration: Valid indefinitely until revoked in writing.

2. Partnerships — Duration (19 CFR 141.34) and Content (19 CFR 141.39)

Two separate sections govern partnership powers of attorney, and the exam tests the split:

• Two-Year Ceiling (19 CFR 141.34): a power of attorney granted by a partnership is limited to a period not to exceed two years from the date of execution. A partnership POA that purports to run indefinitely expires by operation of law two years after execution.
• Content (19 CFR 141.39): the partnership POA provisions require that the instrument state the names of all members of the partnership. A single member with authority may sign and bind the partnership.
• Limited Partnerships: In the case of a limited partnership, only general partners must be named on the POA form. Limited partners do not need to be identified, provided a certified copy of the partnership agreement is kept on file proving their limited status.

3. Nonresident Principals (19 CFR 141.36 and 141.37)

• Resident Agent Mandate: Under 19 CFR 141.36, a nonresident individual, partnership, or corporation executing a customs POA must designate a resident agent located in the United States who is authorized to accept service of legal process on behalf of the principal.
• Nonresident Corporate Execution (19 CFR 141.37 — "Additional requirements for nonresident corporations"): A POA executed by a foreign nonresident corporation must be executed by a corporate officer. The broker must also maintain proof that the signing officer possessed authority under the laws of the foreign jurisdiction to bind the corporation.
• Acceptance: Under 19 CFR 141.36, the POA is not valid until accepted in writing by the designated resident agent or customs broker.

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Delegation, Sub-POAs, and Revocation Procedures

Delegation to Subagents (19 CFR 141.43)

A customs broker may appoint another licensed customs broker to act as its sub-agent (for example, to file an entry at a remote port where the primary broker lacks operational coverage), only if the underlying power of attorney granted by the importer expressly confers the power of appointment and substitution (potestas delegata non potest delegari exception).

Revocation of Power of Attorney (19 CFR 141.35)

Under 19 CFR 141.35, a customs power of attorney may be revoked at any time by the principal. However, the revocation is legally effective only upon written notice of revocation being received by the Center or port director where the entry transactions occur. An oral revocation or an unnotified private cancellation between importer and broker has no legal effect against CBP, and entries filed prior to CBP's receipt of written notice remain valid and binding against the principal's customs bond.

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Comparison Table: Principal Types and POA Legal Specifications