By Jill Hurley
To protest or not to protest … that is the question everyone in the trade community has been asking since the Supreme Court’s ruling that tariffs could not be imposed under the International Economic Emergency Powers Act (IEEPA).
How to answer that question depends on how certain questions are answered and considerations are made, but many decision-makers may be swayed by misinformation swirling around social media and even trade-community circles.
Let’s dispel some of the myths that have been going around:
Myth 1: I need access to the Automated Commercial Environment (ACE) to get an IEEPA refund
This is actually not true. It’s definitely helpful to have access to ACE and be able to draw upon your ACE data to gain greater visibility into how many of your customs entries have had IEEPA tariffs applied to them. However, there are many infrequently importing businesses that haven’t yet enrolled in ACE. For them, they can still apply for an IEEPA refund through their customs broker that submitted the entry on their behalf.
Myth 2: U.S. Customs and Border Protection’s (CBP) new CAPE portal for IEEPA entries will allow for all IEEPA refunds to be processed immediately.
Based upon the timeline proposed by CBP, the CAPE system will be made available to importers on April 20, 2026, for refund request submissions. CBP has stated that CAPE will allow them to review IEEPA refund requests, update entries to remove IEEPA, and liquidate/reliquidate the entries with a refund within 45 days of acceptance. However, CBP has also stated that this timeline could be altered, should they identify a compliance concern with the filing or the entries contained therein. How much lag time is anyone’s guess at this point, but it’s fair to say refunds are unlikely to be issued immediately.
Myth 3: All IEEPA-related entries will be given the same treatment.
This is simply incorrect and CBP has said as much. IEEPA refunds will be processed through a multi-phased approach, beginning with the simplest of entries first and then progress to more complicated ones in subsequent phases. In Phase 1, CBP will only process refund requests for unliquidated entries and entries that have liquidated within the past 80 days. More complicated entries, such as entries flagged for reconciliation, entries designated on a drawback claim, entries covered by an open protest, and entries covered by antidumping and/or countervailing duty orders will be processed and refunded under later phases, as CBP continues to further develop CAPE’s capabilities. Not all entries submitted in CAPE will be refunded at the same time. Some could see a refund in the early summer, while others may not see a refund until later in the year or even 2027.
Myth 4: It’s best to file a protective protest on all liquidated IEEPA customs entries.
This depends upon the age and date of liquidation of the entry. CBP has said that more complex entries will be dealt with in subsequent phases of the refund process. This includes entries on which there are protective protests.
Filling a protective protest on a customs entry that liquidated in March 2026 could needlessly delay a refund being issued for that entry, and delay it significantly. On the other hand, it might be worthwhile filing a protective protest on a liquidated entry (an entry that is more than 314 days old) that is rapidly approaching the 180-day deadline for protest submission. That’s a decision that ultimately rests with each importer and their legal counsel as to whether it make sense to do so. And that’s where access to ACE data to track the status of liquidation becomes very useful.
Myth 5: CBP will subtract from all IEEPA refunds any outstanding balances an importer has with CBP.
There was some speculation that this was going to be the case, but there’s nothing to suggest that it will be. Refunds are issued entry by entry, not on a collective lump sum, so calculating how much should be taken off a refund to account for an outstanding balance could quickly become an overly complicated matter for CBP.
Myth 6: CBP will issue refunds on all IEEPA entries, even unprotested entries that fall outside the protest period.
CBP has not yet given the trade community official guidance on how it will handle liquidated entries that fall outside the protest period but have not been protested. While the U.S. International Court of Trade (CIT) ruled that all entries must be refunded, there is still a lack of clarity as to whether that includes unprotested, liquidated entries. That’s why it may still be useful to file a protest, just not too soon.
At a time when disinformation abounds, it can often be difficult to distinguish fact from conjecture. Before making any significant decisions regarding your IEEPA positions, it is critical to speak with your customs brokers to verify what has been provided as official guidance from CBP and what remains undetermined. It is equally critical to speak with your legal counsel to identify the options available to you and how they may impact your organization.
Jill Hurley is Senior Director, Global Trade Consulting at Livingston, and a non-practicing licensed attorney specializing in trade. As the practice leader, she spearheads U.S. import and export projects, offering comprehensive reviews of clients’ business models for risk assessment, crafting, and implementing import/export compliance programs, conducting audits, navigating export licensing requirements, and providing support in U.S. trade remedy matters.