Special Episode: Getting Your IEEPA Tariff Refunds (Eventually)

The Supreme Court  tossed IEEPA tariffs out, but don't pop the champagne just yet. The White House pivoted with a (temporary-ish) 10% global tariff under Section 122 just four days later. It's currently sitting well below the 15% to 20% ranges we saw previously, but with the July expiration date looming, the USTR is sprinting through 122 new trade investigations.

The billion-dollar question: how do you actually get your IEEPA refund? 

CBP is launching the CAPE portal mid-April, but you can't just ask for your money back; your customs entry has to be completely "liquidated" first. 

That means you're waiting at least a full year from the import date. (I’m not crying - you are).

And... the Importer of Record is the only one cashing that check! If you didn't pay customs directly, the cash isn't trickling down your supply chain. 

Adam Lewis from Clearit Customs Brokers joins Judah Levine to break down the exact paperwork you need, who actually qualifies, and why the government's "automated" portal still involves a massive manual review bottleneck.

This podcast is a little experiment from Freightos—and may not be around forever—so if you dig quick bites of freight wisdom, let us know. 

For more detailed weekly freight updates delivered straight to your inbox, check out our weekly freight email. Want the freshest freight data on demand? Hit up terminal.freightos.com.

Transcript

SPEAKER_00 0:00

Welcome to our trade war update specifically about EPA tariff refunds. Um, from Fredos together with Clearit, I am Jude Ladine, head of research at Fredos, and I am joined by Adam Lewis, who is the president at Clearit Customs Brokers. I'm just gonna uh run through kind of where we are and how we got here real quick, and then we're gonna have some questions for you to try and clarify what's going on specifically with the refunds. The Supreme Court of the United States issued a decision or a much awaited decision towards the end of February and February 20th that uh held up lower course decisions that the the use of EPA, the International Emergency Economic Powers Act, by the President to introduce all these uh country-specific tariffs, the so-called reciprocal tariffs, the tariffs on fentanyl, that those were an overreach and invalidated those um those uh tariffs based on EPA. So the ruling doesn't invalidate and doesn't stack on top of the other uh uh trade laws that were used for um for other tariffs, so Section 232 sectoral tariffs like on steel and um uh automotive goods and things like that, those remain in place. It also doesn't touch the country-specific, good-specific tariffs like Section 301 tariffs, which were really just on China from the first Trump administration. So those are untapped and also uh de minimis remains suspended. Um from the very beginning of these challenges to the use of EPA, the White House has maintained that if it was invalidated, that they would replace those tariffs by other means. And indeed, the White House responded really quickly. They reframed the emergencies that I that were identified for the use of EPA as a balance of payments problem. And that shift enabled them, uh enabled the president to sign an executive order based on something called Section 122 of the Trade Act of 1974, and that was used to apply a 10% import duty on all arriving imports to the U.S. Um, it went into effect on February 24th, and it can be valid only for a period of five months, meaning it will expire at the end of July. Trump had also said that, I'm really on social media, that the tariff would be increased to 15%, which is the maximum allowed under that law. Later, the administration said there's going to be a separate executive order that would raise it to 15%, but only for certain countries, meaning countries whose EPA tariffs were 15% or higher. Um, but so far that hasn't materialized. So at the moment, the global uh tariff is at 10% on all arriving imports. Um, the executive order also kept in place a lot of exemptions or exceptions that had been put in place over the last um few months or longer to the EPA tariffs themselves. So those uh exemptions, I think for the most part, if not entirely, are still remained exempt. Um but if we talk about Section 122, this balance of payments law, it was put into place when the U.S. was still on the gold standard. So there's some skepticism about the argument being made for these tariffs. And in fact, just uh last week, two dozen states filed a lawsuit with the Court of International Trade, accusing the president of misapplying this law as well. So we'll see, you know, maybe they're gonna be Section 122 refunds as well. Um as we said, Section 122 is temporary and other laws like Section 232 for sectoral tariffs and section 301 for specific goods, um, those can be used to put tariffs in place, but those require um government agency investigations. It requires research uh recommendations, and only then can the president use them to introduce tariffs. Just in the last couple of weeks, though, the U.S. trade representative has said that there are 301 trade investigations that are underway and that they're going to be completed by the end of July. Um, and these fall into uh into two categories. One are investigations into uh structural excess capacity in manufacturing investigations, looking into about 16 different countries, including China, India, Vietnam, Indonesia, the EU. Um, and this looks into whether these countries are imposing policies that, to quote the law, burden or restrict U.S. commerce, really looking at um kind of excess capacity or or subsidizing manufacturing and therefore having kind of an unfair advantage in entering a different market. Um the other one is which is on a broader uh swath of countries, about 60 countries from what I've seen reported, is looking into forced uh labor claims. Um and if these countries are using forced labor, then this law allows um the president uh to uh to introduce tariffs for that reason. Now, as we said, these are processes, they require research, and they also have a comments period and a hearing uh uh associated with it. So um comment period for both of these are due by April 15th, when the USTR will accept comments on the on what these issues are and how they're proceeding. And then there'll be hearings for forced labor and uh on April 28th and structural capacity on May 5th. So these are moving forward, and again, the timeline is that they're trying to get these in place before the end of July. Trying to replace um uh EPA is important because the trade agreements that the U.S. arrived at with a range of trade partners um since last April were based on those EPA tariffs. So the U.S. is saying that they're going to honor those uh trade agreements. A lot of other countries on the other side of these agreements are being a little bit more hesitant because they need, they need clarity. But for the most part, it seems that country that other trade partners with the U.S. are um a metabolic kind of moving forward if uh tariffs aren't raised above where they were in those agreements. But as we said, the current level is 10 percent. So for a lot of countries, um that's changing the terms in the meantime, mostly downward, because most countries' uh agreements were somewhere between 15 and 20 percent tariff levels, which was the range for most countries. So it'll be interesting to see if we see any any uh front loading because of this really effective reduction, which is on some for some countries is you know could be considered meaningful. Um, although really so far it seems we're not seeing a lot of front loading, maybe again because of the uncertainty and because of this uh statement that they're going to be raised to 15 percent, which would make it a lot less um uh attractive for most importers from from most countries. Um one change, though, uh regardless of tariff levels, even though the tariff levels through these 301 or 232 end up about the same, um, may be kind of the speed at which things change, because having the uh no access to EPA might mean a lot of a somewhat of a less chaotic uh rate of change in the U.S. uh trade policy. So the White House chose EPA really because of its speed. Trump used the threat of tariffs uh again, again over the past year, even on uh issues that aren't necessarily trade-related, like the issue of you know possession of greenland and things like that. And those threats were taken seriously because the president was using EPA to be able to introduce tariffs almost immediately via executive order. And so last year we saw uh starts and stops front loading and all of a sudden you know uh stops in in front freight volumes because uh importers were trying to erase ahead of tariffs or stop uh shipments because tariffs had all had suddenly spiked. So that might not be the case this year, even if ultimately costs are uh are similar. Um, and then finally is the issue of refunds. So the Supreme Court actually didn't rule on refunds, they sent that back to lower court, which is again the Court of International Trade. Um, and just last week, or I think now might be two weeks ago, uh the court ordered the government to start refunding those billions of dollars in EPA tariffs, paid since EPA tariffs were introduced. Um, a lot of people were surprised at how quickly this ruling came and that it kind of relies on a single case, even though thousands of companies had uh filed lawsuits to get refunds, it seems that it kind of uh consolidated. Um Customs and Border Protection responded, though, that there are hundreds of thousands of companies that are, you know, might be eligible for refunds, and they can't do that immediately. They can't do it manually, and they need to set up an automated system and ask for for 45 days. Um as of uh a few days ago, I believe they said that that portal was about 70% complete. So there's still a lot of questions as to when refunds will get going, and that's why we have um we have Adam here. But um also we've heard even since this announcement that some companies are still filing for uh filing lawsuits. Seems refunds are on the way, but still a lot of uncertainty. Uh Adam, over to you. Uh what is the latest? You could just kind of unpack what the latest developments are in terms of the Court of International Trades, their ruling, the CBP, what's going on right now?

SPEAKER_01 8:42

Yeah, so the good news is uh refunds are on the way. How long it will take, um, still unsure of. As you mentioned before, um there is a process that's going to be released by CBP. It's a new portal uh called CAPE. Um right now, as you mentioned, it's you know, it's about halfway done, but it's expected to be released uh sometime in April, probably mid to end of April. Um and what this is gonna allow uh both brokers and importers to do is basically go in and file their own um refunds. What that is going to look like, we're still unsure of. Um I mean, the recommendation, at least you know, from our end, if you are a self-file or if you have access to ACE, um, which is the customs interface where CAPE is gonna be made available. Um, if you do have access to it, I I mean, we're recommending that you use a broker to do this, but of course, anyone can go in and file for um for their own refund if they do have access to it. Um basically, from what we understand, the process is going to be uh you're basically gonna create like a CSV or an Excel with all of your entry information. You're also gonna have to provide your supporting documents, so your 7501s, your uh invoice, your packing list, bill of ladings, you know, certificate, certificate of origin. I believe they're also asking um importers to show proof of payment. So show the proof of the amount you paid for the entry originally, um, including the IEPAs. Um and this system is going to essentially you know cross-ramperce everything, estimate the amount that is going to be refunded to the importer, and then it's going to be a manual process. Um we understand CBP is then going to manually review um basically what the system creates. And then they'll initiate a refund process. Now let's keep in mind from what we understand now, CBP is only going to be issuing refunds on IEPA and reciprocal tariffs on those entries that have been liquidated. So a liquidated entry is typically takes about a year for an entry to liquidate. It's basically customs like closing it off, closing off the file and not being able to go back and review it. So you will only technically be um you know eligible for a refund a year after you're you be you paid for that shipment. Um you know, there are some shipments where it takes more than a year. For example, if you had like uh anti-dumping or countervailing duties uh applying to your to your shipment, uh the liquidation period can be much longer. Um but it's it's basically once you're a year out, um you might start to see your uh your refund coming in if you've if you've made the application.

SPEAKER_00 11:44

Because it needs to be liquidated before you can get a refund? Correct. And what if it's already been liquidated? Does that mean you're eligible, or does that mean that it's problematic because it's already closed?

SPEAKER_01 11:54

Uh from what I understand, you would be eligible. Um if it's already liquidated. They're they're basically customs is saying, like, hey, until we've closed out this entry completely in our system, we're not looking at it for a refund. That doesn't mean you can't go in and file for your refund. We recommend for everyone to just get it in as soon as possible. Um but the process won't really initiate until your entry has been liquidated.

SPEAKER_00 12:18

Okay. And and and who is gonna be eligible to get a refund? Um and what do those companies need to do in order to receive a refund? What should they be doing now? Because as we said a minute ago, we're hearing that some big companies like um I can't remember the names, but you know, serious uh significant importers are filing lawsuits now, um, which seems to say like maybe they're not confident that whatever the process is now will make them eligible. Um and I'm sure a lot of small businesses don't have the the capabilities of doing that or won't unless they absolutely need to. Um and the other question is uh do you you hear the term importer of record um and that applies to to can could be different pieces of the of the supply chain or in logistics. So who is eligible and you know how's this gonna get going?

SPEAKER_01 13:04

Well, the the refund only going to that was responsible for the import and actually paid the duties uh upon entry into US commerce. So it's not gonna trickle down the level.

SPEAKER_00 13:19

At least for me, I'm sorry. At least for me you cut up for a second. Oh, I'm sorry, who will only who will only go to?

SPEAKER_01 13:25

So so the importer of record is the entity or person who was responsible for the import when it came in to the US and who actually paid those duties, um they're eligible for the refund. This is not the there's there's no mechanism where this is going to start trickling down the supply chain um or to like, you know, uh an end buyer, right? I mean, um, you know, over the last year we've seen prices increase because uh importers are paying these extra tariffs. Um it's really only the importer who brought it in originally who's eligible for that refund.

SPEAKER_00 13:58

Aaron Powell But is the importer of record always the importer, or can it sometimes be the Ford or even the carrier that kind of then was supposed to uh you know was paid, was uh compensated by the actual imports?

SPEAKER_01 14:11

Yeah, no, look. So I mean the importer of record has to have financial interest in the shipment in order to act as an importer of record. Um, I mean, you cannot be, you know, an entity that has no um interest in the shipment and act as an importer of record. So it's either going to be the buyer, the seller. I mean, in some cases there are importer of record services, um, or you know, there are agreements where you know a logistics partner might technically act as the importer of record, but that's even that in itself is rare. It's basically gonna be the buyer seller or consignee, you know, whatever it is who um has financial interest in the shipment.

SPEAKER_00 14:52

So I imagine we could think of a scenario where um someone was an importer of record that then, you know, maybe a wholesaler or something that then passed that on to someone who's the actual, you know, who is in some way also the importer and kind of compensated the person who paid for it. But for the most part, it's the actual importer um that's been responsible for the for these fees. That makes sense.

SPEAKER_01 15:14

Yeah. Basically, if you paid, if you paid those, you will get a refund. If you paid customs directly for those duties, not, you know, if it trickled down somewhere else. If if you were the entity that paid customs for it because you acted as the importer of record, you were eligible for refund.

SPEAKER_00 15:30

Got it. Um so what do these companies need to be doing right now? You mentioned like if you have access to ACE, you should start um uh start the process. Are there other things that that companies should be doing?

SPEAKER_01 15:40

Well, uh, I mean, before this is announced, we had uh a lot of companies just going and filing protests, um, basically saying that these duties should not have been applied. And it's it's basically just to have it logged into custom system. The hope was that um if and when something was announced, there would already be a record of something in the custom system. There was talk that a lot of these would be refunded automatically. I mean, no one really knew exactly how this was gonna work. Now we're starting to see this take shape, um, which is essentially right now, you kind of have to wait until this portal is open. Um, if you file the protest uh beforehand, I believe you will still have to go in um and actually, you know, create um, you know, do the refund process in this new CAPE system. But essentially what you're gonna have to do, like I mentioned earlier, you're gonna have to put together like a full package. It's very uh it's very similar um to what the protest system looks like now, at least so it's what we expect. Um it's probably just kind of like a copy paste of it, where you're gonna go in, you're you're gonna submit all of your uh supporting documents, you'll put together just like a spreadsheet of all your entry numbers, the amount of duty you paid, um, you know, there's some some details to enter and send it off. It's not uh a complicated uh process. I think where it's can become more complicated is that um once CAPE has you know reviewed what you've submitted and this is automated, it's then going to a manual review. Um and USCMBP is gonna be scrutinizing this for sure. It's at that point where things might get a little bit more complicated, where you're gonna want the assistance of a customs broker. Um but uh effectively you just have to either, if you have access to ACE, we'll go into the K portal when it opens. If not, you reach out to your customs broker for clear it. Uh, I know we're gonna be doing this um automatically for a lot of our customers. So once you're coming up to your liquidation date, we'll automatically file this for you if one has not automatic if one has not been filed for you yet, we'll go and we'll we'll file uh the protest for you for the uh for the refund. But you go in and you submit your documentation, and and then you just kind of have to wait and see. Um, but you should get an estimation of what the refund would be plus interest. You have to keep that in mind. You'll also be receiving interest uh on the duties that you paid, and you know, it'll be a year's worth of interest at least.

SPEAKER_00 18:20

Okay, so it sounds like there's you know some clarity uh coming along or coming into focus. Um you talked about the timeline uh a little bit. You have to submit your your claim for the refund. Um, all this is kind of automated, but you're saying on the back end it ends up being manually uh reviewed and also not being reviewed until it's liquidated, which also takes time. I think maybe a lot of people were seeing this as kind of an entirely automated process once you put that claim in, but it seems like it's shaping up not to be that way. So you had said maybe you know you're looking at it at a year, or what do you think the timeline is if the ship is already liquidated, let's say? Or is there a new release? I can't.

SPEAKER_01 19:00

Yeah, I mean, I can't really say. Um I would probably assume like beforehand, the when you when you file a protest and you know your like a refund is is processed on your behalf, it usually takes but you know, about 60 to 90 days. Um I would assume because there is going to be such a large influx, I mean, there is there they're gonna be dealing with I mean, hundreds of thousands and millions of entries, it's probably gonna take a little longer. Um, I can't tell you exactly what the time frame is gonna be, but what we do know is that you will not technically be eligible to receive it back until your entry has been liquidated. So it's at least a year out um for when your goods enter the US. Um and then from that point, probably, you know, I I would want to say at least three months until you have, you know, a check in hand or a deposit.

SPEAKER_00 19:57

Right. So there are a lot of different components that need to get done. And it's not just that it's a manual process uh in some parts of it. It's just that this is kind of how long the process takes in general. This isn't the first type of um instance where things need where you know tariffs need to be refunded, from what I'm understanding. Yeah. Um finally, when we talked about how the administration is you know working to introduce tariffs by other means, you talked about Section 301 and Section 232. Section 232 is usually global and sectoral. It's on certain sector of goods like uh aluminum or steel or automotive parts from all countries. Section 301, from my understanding, is on specific countries, but also on specific types of goods. So the 301 tariffs we had on China didn't apply to 100% of goods. It applied to something like 60%, um, but not to 100% of goods. Can these be introduced in kind of a one-to-one replication of EPA?

SPEAKER_01 20:51

Um, I mean, I think it would be difficult. Um, but I mean I wouldn't be surprised if the you know if the administration tries. I think it's a little bit more difficult for it to stick with the 301 duties. Um, you know, Trump in his first term, um you know, these the the US TR 301 duties were put in place because there was a very clear case against China. Um, you know, basically after an investigation, um, you know, they um the you know the U.S. you know, trade representatives had you know basically agreed what was kind of like long known beforehand that you know China was you know taking part in unfair practices related to like technology transfer and cyber intrusion and um you know IP infringement, and they were able to uh apply these 301 duties to China, so country specific, on a huge list of um of products. Now it wasn't um, you know, they're they're specifically targeted. It's not to say that, you know, because um, you know, China took part in these unfair practices related to technology Technology transfer that the their technology I mean they put they put it on clothing, they put it on, you know, on a wide variety of different commodities. Um but you have to have a an argument. Uh there has to be an investigation, and you know, the in the investigation has to find something um credible in order to apply these uh you know the 301 duties. So um I can certainly see, I mean, we've already seen that um, you know, they might put something in place like 301s related to, for example, with China to force labor, um, which is something that, you know, even some of the previous administrations, uh, the Biden administration has been targeting uh China for. So there's a possibility there. But it's a lot more difficult to have them kind of stick um for you know other reasons other than what uh what what U.S. trade represented revenue presentatives have already found going on in China. Right.

SPEAKER_00 23:02

Right. Well, as you said, it certainly looks like, and from what they're saying and what's being reported, it looks like they're certainly uh trying. So you know, I don't think there are expectations that tariffs are going to go away. It's possible that they'll be a little, you know, not be applied to 100% of goods coming from some countries and they'll you know be um a little bit more selective. So that might be um for some types of importers um good news. Um okay. Well, Adam, thank you very much as always. And uh to all of you watching this, you can learn more about Clearit at Clearitusa.com and also you can go to fritos.com to uh check out a lot of our um offerings and been helping to digitize freight as well as a lot of resources for uh for importers and a lot of stuff on uh what's going on in the market as well. Adam, thanks a lot. See you next time.