Thursday, October 22, 2026
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Trade & Customs Oct 22, 2026 · 7 min read

CAPE Phase 3 opens to a second wave of litigant importers

Second CAPE Phase 3 wave opens for importers who sued. CBP opened CAPE Phase 3 to a second group on 20 October. These are importers that sued over IEEPA tariffs and gave CBP their importer-of-record (IOR) numbers between 31 July and 13 August, Trade Law Daily reports. The first group went live on 6 October. We think CBP is now releasing its backlog in batches about two weeks apart. Anyone who filed after 13 August gets access “at a later date”, and CBP has set no date. Importers that never sued still cannot use Phase 3. Our call: CBP opens Phase 3 to the post-13 August group by end of November 2026.

CBP adds a second batch to CAPE Phase 3. Everyone who filed after 13 August is still in line.

On 20 October, US Customs and Border Protection (CBP) emailed importers’ attorneys to open CAPE Phase 3 to a second group of importers. Trade Law Daily reported it on 21 October. CAPE is CBP’s online system for refunding the IEEPA tariffs, the duties imposed under the International Emergency Economic Powers Act that the Supreme Court struck down. The new group is narrow. It covers importers that sued over the tariffs and gave CBP a valid importer-of-record (IOR) number between 31 July and 13 August. The IOR number is the ID that customs uses for the party legally responsible for an import. Phase 3 opened on 6 October, but until now only to importers whose numbers reached CBP by 30 July.

Our view: CBP is releasing Phase 3 in planned batches, sorted by when each importer’s number arrived. The second batch came two weeks after the first. For importers who sued, the legal question is settled and the rest is a queue. For importers who did not sue, nothing has changed. That split matters more than any filing date.

What opened, and for whom

Phase 3 deals with the oldest and hardest entries. These are “finally liquidated” entries. Liquidation is CBP’s final calculation of the duty owed on an entry. Once the window to challenge that calculation has closed, the entry is finally liquidated. Law firms advising importers say CBP has no way to refund those duties without a court order.

Trade Law Daily lists the rules for the new group:

  • The importer must have sued at the Court of International Trade (CIT) and received a reliquidation order. That is a court order telling CBP to recalculate the duty.
  • The IOR number must have been submitted between 31 July and 13 August.
  • Eligible entries are those more than 80 days past liquidation and those under open or suspended protests. A protest is the formal administrative challenge an importer files against a liquidation.

Importers that sued and submitted numbers after 13 August will get access “at a later date”, according to CBP’s email as reported by Trade Law Daily. CBP will notify their attorneys. It has not given a date.

The first batch moved quickly. CBP called the 6 October launch “successfully deployed”, Newsroom America reported on 8 October. By then 477 Phase 3 declarations had been logged.

Why we think this is a batch process, not a one-off

CBP signalled the phased approach early. In a 17 September client advisory, C.H. Robinson relayed CBP’s notice that Phase 3 would open on 6 October. It would open for importers that “provided a valid importer of record number to CBP by July 30, 2026.” The same advisory said CBP “is expected to provide further guidance on the filing of CAPE Phase 3.” The 20 October email is that guidance for the second group. It came with a date range, not an open door.

Two points of evidence, two weeks apart, are not yet a pattern. But the logic fits. CBP is checking each importer’s court order against its entries. Sorting the work by when IOR numbers arrived keeps the checking manageable. We expect the post-13 August group to follow the same way.

The refund totals help explain why CBP can afford to go slowly. CBP’s figures, published by C.H. Robinson on 17 September, show:

  • More than 286,000 CAPE declarations submitted, with over 201,000 accepted for processing.
  • About 27.2 million entries covered.
  • About $134.7 billion in potential and certified refunds accepted into CAPE.
  • About $122 billion, including interest, certified and sent to the US Treasury for payment.
  • About 20,184 refunds worth $1.3 billion on hold “because the importer of record has not provided ACH banking information.”

Total IEEPA duties collected were $166 billion, according to a government filing reporting status as of 10 July, cited by law firm Davis Wright Tremaine. On our arithmetic, $122 billion certified is roughly 73% of that. The dates differ, so treat it as a rough share. Most of the money is out. What is left is the long tail of older entries, and Phase 3 exists for those.

The protest problem

There is a snag that brokers will hit straight away. The new notice says Phase 3 accepts entries under open or suspended protests. CBP’s own FAQs say something else.

Denise Calle, customs and trade practice chair at OFW, said it is “encouraging to see how quickly CBP is moving forward.” She also pointed to the FAQs, which state that “entries associated with open or suspended protests will be rejected during CAPE validation.” Her view, as reported by Trade Law Daily, is that a suspended IEEPA protest “should not, by itself, prevent the entry from being submitted through Phase 3.”

Until CBP clears this up, some declarations will bounce. Our view is that this is a drafting conflict, not a policy change. But a rejected declaration still costs the client time.

There is a second limit. Reliquidation through CAPE does not reopen the whole entry. Flexport’s trade compliance team notes that a later protest can challenge only issues that were part of the reliquidation, under 19 U.S.C. 1414(d), Newsroom America reported. Brokers should not treat a Phase 3 filing as a chance to fix other errors on the entry.

The importers Phase 3 still leaves out

Phase 3 is for litigants only. Law firm Troutman Pepper Locke put it bluntly on 13 August: importers with finally liquidated entries “can access CAPE Phase 3 refunds only by filing suit at the CIT and obtaining a reliquidation order.” It added: “CBP has no current administrative pathway to refund those duties absent a court order.”

That is a big group. Davis Wright Tremaine put the number of refund cases at the CIT at about 3,700 in late July. Many more importers paid IEEPA duties and have not sued.

Two court fights could change their position. Class certification motions, pending at the time of the two law firms’ July and August updates, aim to cover non-litigants. The government has also appealed Judge Richard Eaton’s order to the extent it requires refunds to non-litigants, Davis Wright Tremaine reported. It argues that the Supreme Court’s decision in Trump v. CASA, which limited court orders that protect people who are not in the case, applies to the trade court too. A group of importers led by V.O.S. Selections disagrees, Newsroom America reported. If the government wins, importers would likely need their own suits.

The clock matters here. Suits under 28 U.S.C. § 1581(i), the trade court’s catch-all jurisdiction, must be filed within two years of the duty deposit. Troutman notes that entries subject to IEEPA duties from February 2025 “will have deadlines expiring as early as February 2027.” Both law firms say an importer can wait “until at least February 4, 2027” and still get interest through reliquidation.

What forwarders and brokers should do now

  • Sort clients into three groups. First, litigants whose IOR numbers reached CBP by 30 July: open since 6 October. Second, litigants with numbers filed 31 July to 13 August: open since 20 October. Third, everyone else: either waiting for a date or shut out entirely.
  • File for the second group now. Prioritise entries with no protests. They are the least likely to fail validation.
  • Hold or flag protested entries. Tell clients that entries under open or suspended protests may be rejected until CBP squares its notice with its FAQs.
  • Chase banking details. CBP says $1.3 billion is stuck because importers have not given ACH details. This is the easiest money to release, and brokers are often the ones who can get the form signed.
  • Have the litigation conversation with non-litigant clients. For mid-sized importers with finally liquidated entries, waiting on a class action is a bet. The February 2027 deadline is about 15 weeks away.

For lanes and cash flow, the effect is narrow but real. In our view, importers in the second batch are likely to be large or well-advised firms that sued early. A refund now improves their working capital going into the new year. That can show up as better payment terms or more appetite to book. Smaller shippers who did not sue get none of this.

Our predictions

We expect CBP to open Phase 3 to importers that sued and submitted IOR numbers after 13 August by the end of November 2026. The first two batches came two weeks apart. CBP has already told attorneys that a further notice is coming. And the remaining refund pool is small next to what has already been certified. If CBP keeps the same pace, the next group could open in early November. We are allowing extra time for the protest-validation conflict to be fixed first.

We also expect a rise in individual § 1581(i) suits from mid-sized importers in the first quarter of 2027, ahead of the February deadline. Phase 3 has now shown, twice, that suing is what gets an importer into the queue. Until a court rules for non-litigants, importers who want their money will keep filing their own cases.

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