IEEPA Refunds: Protesting Liquidated Entries in the Wake of CAPE Phase 1

On April 8, 2026, U.S. Customs and Border Protection (“CBP”) issued guidance on the Consolidated Administration and Processing of Entries (“CAPE”) program and the beginning of Phase 1 of the CBP’s tariff refund strategy. According to CBP, CAPE Phase 1 will be launched on April 20, 2026. CAPE is an administrative processing tool designed by CBP, which, in Phase 1, will allow importers and customs brokers to file Phase 1 requests for refunds of IEEPA duties (aka tariffs) directly through the Automated Commercial Environment Secure Data Portal (“ACE Portal”) by uploading a comma-separated values (“CSV”) file in the new CAPE tab in the ACE Portal (the CSV file is referred to as a “CAPE Declaration”). CBP designed the portal, in part, to streamline the process for importers and brokers to request IEEPA tariff refunds.

One question that remains unanswered with respect to Phase 1 is how Phase 1 of the potential recovery process will affect entries that will need to be protested while CBP considers the merits of a CAPE Declaration filed in Phase 1. Specifically, Phase 1 of the CAPE launch will evaluate only unliquidated entries or liquidated entries that are up to 80 days past their liquidation date. CBP has stated that following CBP review, those entries will be liquidated or reliquidated and refunds will be issued. However, the following categories of entries will not be accepted in a Phase 1 CAPE Declaration: (1) entries that have been flagged for reconciliation, as well as Entry Type 09- Reconciliation Summary; (2) entries on a drawback claim; (3) entries covered by an open protest; (4) entries not filed in ACE, and entries without a liquidation status in ACE; (5) entries subject to Antidumping/Countervailing Duties, for which the U.S. Department of Commerce has issued liquidation instructions, that are pending liquidation; and (6) entries for which liquidation is final.

Although each of the abovementioned entries omitted from the Phase 1 process have broader considerations, one in particular creates a potential issue for importers that has not yet been addressed by CBP (i.e., category (3) entries). As noted in our previous alert, once an entry has liquidated, an importer has 180 days to protest the liquidation. Failure to protest a liquidated entry within 180 days results in an entry becoming final, and the importer loses most, if not all, ability to further challenge the tariffs imposed on that particular entry. Because CAPE Phase 1 does not allow processing of entries that are covered by an open protest, some importers might find themselves in the difficult position of deciding whether to (a) file a CAPE Declaration without filing a protest in hopes that the processing and refund time does not result in a lapse of their 180-day protest period or (b) forgo participation in CAPE Phase 1 in order to file a protest on entries that might exhaust the 180-day protest period while undergoing review in CAPE Phase 1. CBP has so far been silent on whether filing a CAPE Declaration will toll the running of the 180-day deadline to protest a liquidated entry, and it remains unclear how CBP will treat entries that become final while awaiting processing in CAPE Phase 1.

There are some critical things importers should consider given this potential issue:

• Because the Court of International Trade recently dismissed the lead case for the development and implementation of the refund process (Atmus Filtration v. CBP) and has selected a new lead case for IEEPA refunds (Euro-Notions Florida, Inc. v. CBP et al.), the government now has additional time to potentially challenge the Court of International Trade’s earlier ruling that IEEPA refunds will be granted to importers whose entries have been finally liquidated. If the government appeals that ruling, waiting for a refund in CAPE Phase 1 while the protest period lapses could result in an entry becoming finally liquidated and, pending the outcome of any challenge, could result in no refund recovery at all.

• If an importer does file a CAPE Declaration during Phase 1, that importer will likely need to keep a very close eye on how long the process is taking and the date that the entries will finally liquidate to preserve the importer’s option to protest in advance of expiration of the 180-day protest period to ensure that the entries do not finally liquidate without protest. CBP has indicated that it could take between 45 and 90 days to process a CAPE Declaration, and there is no set timeline on which a CAPE Declaration must be reviewed and refunds must be issued. All timelines proposed by CBP at this point are merely estimates and are not guaranteed.

• Importers should carefully review their entries and CAPE Declarations to ensure that only those entries that can be processed in CAPE Phase 1 are included in their CAPE Declarations to avoid potential delays in processing or the need to resubmit entries in a later CAPE phase. Additionally, when using the CAPE program, importers should carefully read any information provided within the CAPE system to ensure that the submission of a CAPE Declaration does not preclude the importer from filing a protest while the CAPE Declaration is under consideration.

This information is provided by Vinson & Elkins LLP for educational and informational purposes only and is not intended, nor should it be construed, as legal advice.