CBP Proposes Requiring Importers to Maintain Records of Foreign Export Documentation

Attorney advertising. This article is for general informational purposes and is not legal advice.

Most U.S. importers have never seen the export declaration their foreign supplier filed with its own customs authority. They have never needed to. That document is created on the other side of the transaction, by the exporter or its forwarder, for a foreign government — and it has traditionally had nothing to do with what the importer files with U.S. Customs and Border Protection.

That may be about to change. On September 2, 2026, CBP published an advance notice of proposed rulemaking (ANPRM) titled Heightened Import Disclosures for Supply Chain Visibility, 91 FR 56408. Among other things, CBP is considering requiring importers of record to obtain, retain, and potentially submit the export declarations, commercial invoices, and other documents their suppliers filed with foreign customs authorities. CBP’s stated purpose is to compare what was declared abroad with what was declared at the U.S. border — and to treat unexplained differences as a sign of undervaluation, dual invoicing, misclassification, or transshipment.

Nothing is final. There is no proposed regulatory text yet. But this is the stage at which the rule gets shaped, comments are due December 1, 2026, and importers who want a workable rule — rather than one designed around the worst actors in the trade — should consider filing comments.

What CBP Published — and What It Is Not

The ANPRM is not a proposed rule. It lays out a set of proposals and asks 64 numbered questions, and CBP says it will use the comments to decide whether to draft a notice of proposed rulemaking. The notice identifies 19 CFR parts 141, 142, 143, and 163 — the entry, entry summary, and recordkeeping regulations — as the parts that could ultimately be amended.

The ANPRM covers three broad areas. The first, and the focus of this article, is foreign export documentation. The second concerns identifying the parties behind imported goods — including a possible redefinition or replacement of the Manufacturer Identification Code (MID) and expanded use of Global Business Identifiers. The third addresses supply chain tracing technology and changes to the Customs Trade Partnership Against Terrorism (CTPAT) program. In CBP’s words, the overarching aim is “to more effectively detect and interdict illicit importations, especially those that are illegally transshipped to evade compliance with U.S. customs and trade laws.”

Where This Comes From: Executive Order 14411

This proposal did not originate at CBP. Executive Order 14411, Strengthening Customs Enforcement, signed June 3, 2026 — the same order behind CBP’s recent push to void inaccurate importer of record numbers — directs the Secretary of Homeland Security in Section 3(b) to take steps to mandate the submission of “any documentation or information that the foreign exporter was required to submit to the foreign customs administration prior to exporting to the United States.”

That framing matters. The Executive Order speaks of submission. The ANPRM, by contrast, leaves open whether the documents would be transmitted to CBP with each entry or instead kept as a recordkeeping requirement. Importers should not read the open question as a sign that CBP might drop the idea. The direction from the White House is clear; what remains to be decided is how heavy the obligation will be and how it will work in practice.

What Documents Are on the Table

The ANPRM lists the following as foreign export documentation CBP may require:

• Export declarations made by the foreign exporter to its customs authority, which may show declared value, classification, and quantity.
• Commercial invoices showing the transaction value declared to the foreign customs authority.
• Packing lists verifying contents, weight, and packaging.
• Certificates of origin submitted to the foreign customs authority.
• Export licenses or permits for controlled, restricted, or dual-use goods.
• Transport documents — bills of lading or air waybills — required as part of the export manifest filing.

CBP also recognizes that the party filing the export declaration abroad may not be the manufacturer at all. The notice specifically mentions trading companies, distributors, consolidators, and third-party logistics providers. And Question 9 asks whether documents submitted to foreign government agencies that perform export functions but are not formal customs authorities should also be covered. For importers of food, agricultural products, and other regulated goods — where export certificates are frequently issued by agriculture or health ministries rather than customs — that question could significantly widen the universe of covered paper.

Transmit or Retain? Why the Recordkeeping Option Is Not the “Easy” One

Question 2 frames the central structural choice: “Should foreign export documentation be required to be transmitted to CBP as part of an entry or entry summary filing, or should foreign export documentation be a recordkeeping requirement?”

Many in the trade will instinctively favor recordkeeping over transmission. It avoids adding a document to every entry and a potential hold at the port. But importers should understand what a recordkeeping requirement would actually mean.

Under 19 U.S.C. § 1508, parties who file entries or knowingly cause importations must keep records related to those activities, and under § 1509, CBP may examine and summons those records and audit the importer. The ANPRM itself highlights the Customs Modernization Act bargain behind that structure: CBP may decline to require a record at entry, but in exchange it may demand production of records required by law for entry, whether or not it asked for them at the time of entry. Records of that kind are identified on the “(a)(1)(A) list” in 19 CFR part 163.

If foreign export documentation were added to that list, failing to produce it on demand would carry its own penalty exposure under 19 U.S.C. § 1509(g) — for negligent failures, up to the lesser of $10,000 or 40 percent of the appraised value of the merchandise, and for willful failures, up to the lesser of $100,000 or 75 percent — separate from any penalty for an underlying valuation or origin problem. The general retention period under current regulations is five years from the date of entry; Question 8 asks how long retention of foreign export documents should run.

CBP has also floated a middle path. Question 3 asks whether CBP should randomize submission requirements, both to test compliance with a general retention rule and to measure noncompliance with other U.S. law. And Questions 19 through 23 contemplate a separate regime under which the Secretary could designate categories of imports as posing an unusually high or grave risk to national security, and make submission of the foreign export documentation a condition of entry for those goods. The realistic outcome, in our view, is not a choice between transmission and recordkeeping but some combination of all three: a general retention obligation, random submission demands, and mandatory submission for designated categories.

The Access Problem: Documents You Do Not Own

The ANPRM’s Question 4 asks whether the importer of record should be the party responsible for retaining and furnishing these records. If the answer is yes — and nothing in the notice suggests CBP has another candidate in mind — importers will be responsible for documents they do not create, do not control, and in many cases cannot currently obtain.

The practical obstacles are considerable:

The filer may not be your supplier. Where goods move through a trading company, a consolidator, or a logistics provider, the export declaration may have been filed by a party with whom the importer has no contract at all.

Suppliers may resist disclosure. An export declaration can reveal pricing, margins, and upstream relationships a supplier or intermediary considers confidential. Middlemen in particular may be unwilling to show the importer what they declared.

Foreign law may limit sharing. Some jurisdictions restrict the disclosure of customs filings or commercial data. CBP asks about these constraints directly.

Authenticity will be scrutinized. Question 12 asks how importers can ensure that the document they provide is exactly what was filed abroad and has not been modified, and Question 13 asks whether CBP should verify foreign export data directly with foreign customs administrations. An importer that obtains a document from a supplier and passes it along may be vouching for its authenticity in a way it cannot actually confirm.

Language and format. Question 17 asks whether CBP should require English-language data fields in addition to the foreign-language original — another potential translation and data-entry cost.

Timing. Question 16 asks about current lead times for obtaining foreign export documentation. If submission ever becomes a condition of entry, that lead time becomes a release-timing problem — acute for perishable goods, where a document delay can mean a total loss.

The Value Problem: Why Honest Importers Will Have Discrepancies

The most consequential issue in the ANPRM may be the one CBP poses almost in passing. CBP describes the purpose of the documents as detecting “discrepancies that could indicate violations of U.S. customs and trade laws, such as dual-invoicing.” But the value an exporter declares to its own government and the value an importer declares to CBP are not measuring the same thing, and there are many legitimate reasons they will not match.

A few examples:

• Assists and additions to value. Molds, tooling, or design work the U.S. buyer supplies to the factory must be added to U.S. transaction value, but will not appear in the exporter’s declared price.
• First sale and multi-tier transactions. Where an importer properly declares a first-sale price, the foreign export declaration filed by a middleman may show a higher figure — or the reverse, depending on who exported.
• Post-shipment price adjustments, rebates, and royalties that affect U.S. value but postdate or fall outside the export filing.
• Related-party transfer pricing adjustments made after year-end.
• Currency conversion at different dates and rates.
• Classification differences. The Harmonized System is harmonized only at the six-digit level. National tariff and statistical subheadings diverge beyond that, so a foreign export code and a U.S. HTSUS number will frequently not align on their face.
• Quantity and unit differences, consolidated or split shipments, and differing units of measure.

CBP acknowledges the issue. Question 10 asks how CBP should interpret and reconcile any “conceptual discrepancies” between the price reported abroad and the price relevant to U.S. duty assessment, and Question 11 asks what internal controls and reconciliation processes importers should use and what evidence should justify a difference.

The risk for compliant importers is that a rule built around catching dual invoicing will treat every mismatch as presumptively suspect, with the burden on the importer to explain it — potentially years after the entry, and under audit. There is a second-order risk as well. Question 5 asks whether the duty of reasonable care is the appropriate standard for assessing the accuracy of foreign export documentation before submitting it. Once an importer holds a document showing a materially different value, it arguably has notice of the difference, and an unexamined discrepancy in its own files could look very different in a later penalty case than it does today. Importers that begin collecting these documents voluntarily should be prepared to review and reconcile them, not merely file them.

This is where comments can do the most good. A final rule that recognizes common, legitimate categories of difference, and allows a documented reconciliation to satisfy the importer’s obligation, would look very different from one that simply demands the documents and leaves the reconciliation to an auditor.

The Rest of the ANPRM, Briefly

Although this article focuses on foreign export documentation, importers should be aware of the other proposals in the same notice, because they are likely to move together:

• Replacing or redefining the MID. CBP says the MID provides limited identifying information, is not always unique, and may not identify the party of real enforcement interest. It asks whether to collect full name, address, or other identifiers for the manufacturer, shipper, and exporter instead, and at what stage of the entry process.
• Global Business Identifiers. CBP is evaluating whether the voluntary GBI test — which currently accepts D-U-N-S, GLN, LEI, and Altana ID identifiers — should become a requirement, and whether importers can feasibly obtain foreign tax identifiers for their suppliers.
• Supply chain tracing technology and CTPAT. CBP asks whether importers should be responsible for using tracing tools, whether CTPAT partners should be required to use them and make them visible to CBP, and whether CTPAT criteria should restrict the use of “covered logistics platforms” such as LOGINK.

Taken together with the Form 5106 accuracy initiative and the other Executive Order 14411 rulemakings now under way, the direction is unmistakable: CBP intends to know far more about who sits behind each import, and to put the burden of producing that information on the importer of record.

Why and How to Comment

CBP is asking the trade for exactly the kind of information that will determine how burdensome this rule becomes. The notice invites comments on whether requirements should be phased in by entry type, commodity (including special consideration for critical medical products), country, or mode of transportation; whether different timelines should apply to small entities, foreign importers, CTPAT participants, or high-volume filers; and whether voluntary test programs would be appropriate. CBP says the most useful comments will refer to specific question numbers, describe current practices, and include data with enough detail for CBP to recreate any calculations.

Issues worth raising, depending on your business, include:

• Whether a recordkeeping obligation should be limited to documents the importer can reasonably obtain, with a good-faith-effort standard where a supplier or intermediary refuses (Questions 4, 6, 7).
• A defined set of legitimate reasons for value, classification, and quantity differences, and a safe harbor for discrepancies the importer has documented and reconciled (Questions 10, 11).
• Retention periods consistent with existing recordkeeping rules rather than a new, longer period (Question 8).
• Differentiated treatment for CTPAT participants and low-risk trade (Question 14).
• The release-timing consequences for perishable and time-sensitive goods of any submission-as-condition-of-entry requirement (Questions 16, 19, 20).
• Whether certificates issued by non-customs agencies should be excluded or treated separately (Question 9).
• Realistic compliance costs and implementation periods (Questions 18, 62, 63).

Comments may be submitted through regulations.gov under Docket No. USCBP-2026-1058 and must be received by December 1, 2026. Comments are public, so confidential business information should be handled with care.

A Practical Checklist for Importers

1. Map who files the export declaration for each supply source. For each major supplier and lane, identify whether the manufacturer, a trading company, a consolidator, or a logistics provider files abroad. That answer determines who you would need to ask.

2. Test availability now. Ask a representative sample of suppliers whether they can provide export declarations, export invoices, certificates of origin, and transport documents for recent shipments, and how long it takes.

3. Run a pilot reconciliation. For a handful of entries, compare the foreign export documents against your entry summaries on value, classification, quantity, and origin. Identify the differences and whether you can explain each one.

4. Document your legitimate differences. Where your valuation involves assists, first-sale pricing, royalties, related-party adjustments, or post-importation price changes, make sure your files explain why a foreign export value would differ.

5. Handle what you find carefully. If a pilot reconciliation surfaces a difference you cannot explain, involve counsel before deciding what to do with it. A discrepancy may have an innocent answer; if it does not, the options — including prior disclosure — should be evaluated deliberately.

6. Review supplier agreements. Consider provisions requiring suppliers to provide export documentation, certify its authenticity, cooperate with CBP inquiries, retain records for an appropriate period, and notify you of changes in manufacturing site or exporter of record.

7. Check your recordkeeping infrastructure. Determine whether your systems could store foreign-language documents, link them to specific entries, and retrieve them within a reasonable time if CBP asks.

8. Identify high-risk categories. Consider whether any of your products could plausibly be designated as a national-security category under the ANPRM’s Questions 19 through 23, where submission could become a condition of entry.

9. Coordinate with your broker. Ask how your broker expects to handle any new data elements or documents, and whether its systems can support them.

10. Decide whether to comment — before December 1. If the proposal would affect your supply chain in ways CBP may not anticipate, a well-supported comment is the most direct way to shape the rule.

How We Can Help

Lieberman PLLC advises importers on customs compliance, recordkeeping, valuation, and CBP rulemaking. We can assess how the foreign export documentation proposal would affect your supply chain, run a confidential pilot reconciliation of your foreign export documents against your entry data, revise supplier agreements to secure access to the records CBP may require, and prepare and file comments on your behalf before the December 1, 2026 deadline. If a reconciliation turns up discrepancies, we can evaluate them with you and advise on the right path forward. Contact us to discuss your situation.

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This article reflects the advance notice of proposed rulemaking published by CBP on September 2, 2026, and the state of the law as of September 2026. The ANPRM does not contain proposed regulatory text, and any requirements CBP ultimately adopts may differ substantially from the proposals described here. Customs enforcement policy under Executive Order 14411 is developing rapidly. Nothing in this article is legal advice or a substitute for consultation with qualified counsel regarding your specific circumstances.