Texas Construction Law Blog

For construction owners, developers, contractors, and suppliers, the past fifteen months of the International Emergency Economic Powers Act ("IEEPA") tariffs have landed hard on the materials portion of the business, creating chaos and confusion in project budgets and pass-through clauses. But as of April 20, 2026, a meaningful share of those duties is eligible to be refunded through Customs and Border Protection’s (“CBP”) new Consolidated Administration and Processing of Entries (“CAPE”) tool. In this post, we break down what just changed, what tariff concerns remain, and how to navigate refund claims with your trade compliance team.

The Supreme Court’s Learning Resources decision

On February 20, 2026, the Supreme Court in Learning Resources, Inc. v. Trump held that the IEEPA does not authorize the President to impose tariffs. That wiped out the legal basis for the 25% duties on most Canadian and Mexican imports, the 10% to 20% duties on Chinese imports tied to the drug-trafficking emergency, and the various “reciprocal” tariffs assessed on nearly every U.S. trading partner.

What Tariffs Remain on Construction Materials

Although IEEPA duties are gone, construction materials remain subject to several tariff regimes that Learning Resources did not touch:

• Section 232 (steel, aluminum, and derivatives). As of April 6, 2026, national-security tariffs of 50% on steel and aluminum (as well as 25% duties on derivative products) are in place, including many fabricated steel products, fasteners, and aluminum extrusions common on jobsites.

• Section 301 (China, potentially others). The long-standing Section 301 duties on Chinese-origin goods, including numerous building products, remain in place under U.S. Trade Representative (“USTR”) authority. In light of Learning Resources, expect the USTR to consider expanded Section 301 action as a substitute for the IEEPA reciprocal regime.

• Section 122 temporary surcharge. Within hours of Learning Resources, the Administration imposed a 15% temporary import surcharge under Section 122 of the Trade Act of 1974. The duration of this surcharge is capped at 150 days but currently applies to most imports and to current project deliveries.

• Sections 201 and 338. Narrower safeguard and anti-discrimination authorities remain available, but currently no tariffs have been issued under the guise of either power.

In short, Learning Resources has lowered the cost of many imported materials but not to pre-2025 levels. There also remains uncertainty about what, if any, additional bases for tariffs may be employed by the Administration.

The Refund Process: CAPE Phase 1

CBP collected more than $175 billion in duties pursuant to IEEPA from January 2025. But those amounts will not be refunded automatically. Refunds flow through CAPE, which went live in the ACE Portal at 8 am ET on April 20, 2026. Phase 1 covers two categories of entries: (1) certain unliquidated entries, and (2) entries liquidated within the preceding 80 days (aligned to the 90-day voluntary reliquidation window in 19 U.S.C. § 1501). Refunds, which include interest, are consolidated by Importer of Record (“IOR”) and liquidation date. Refunds themselves will be disbursed by ACH, with CBP targeting issuance within 60 to 90 days of acceptance.

To help simplify the refund process, CBP has confirmed that all Phase 1-eligible entries do not require that an IOR file a case with the Court of International Trade. That said, the Phase 1 process is still detailed and demanding.

Only the IOR or the licensed customs broker that filed the entries may submit a CAPE Declaration. Attorneys may not, for example. Filing is done via a .csv file, which must be uploaded to the ACE Portal. As noted above, IORs or the filing customs broker are capped at 9,999 entries per Declaration, with no amendments allowed once the filing is accepted. Refunds are subject to netting under 19 C.F.R. § 159.1 and offset against outstanding CBP debts under § 24.72.

Given CBP’s exacting refund process, here are some steps that constitute a working playbook for successfully navigating Phase 1:

• Coordinate early with your trade compliance team and broker. The IOR, such as a manufacturer, distributor, fabricator, or the general contractor, controls the filing. Identify the IOR for each material stream and project now to ensure the correct party files for the refund.

• Confirm ACE Portal and ACH readiness. The IOR needs an ACE Portal account with the “Importer” sub-account activated, along with current ACH bank information on file. If there’s no ACH included, CBP won’t process a refund.

• Inventory IEEPA entries by project. Pull entry summaries, Form 7501s, and ACE data for every entry on which IEEPA duties were paid. Map them to projects, cost codes, and contracts so recoveries can be traced to the right job.

• Triage Phase 1 vs. later phases. Segregate unliquidated entries and entries liquidated within 80 days from those that must wait, which include finally liquidated, protested, drawback, reconciliation, and AD/CVD entries awaiting Commerce instructions.

• File carefully. Declarations cannot be amended. Validate the .csv file against CBP’s published rejection codes before they are uploaded and batch across multiple Declarations where volume exceeds 9,999 entries.

• Monitor the refund reports. Track the issuance and any offsets via the REV-603 Trade Refund Report and the new REV-615 Trade CAPE Detail Refund Report.

• Address pass-through contractually. Construction contracts routinely contain change-in-law, tariff pass-through, and price-adjustment clauses, plus cost-reimbursable mechanisms on guaranteed minimum price, cost-plus, and unit-price jobs. A refund received by the IOR may be contractually or equitably owed upstream to the owner or downstream to a subcontractor or supplier. Review indemnity, setoff, and audit provisions before disbursing or demanding payment.

• Preserve non–Phase 1 rights. For entries outside Phase 1, continue to calendar § 1514 protest windows and evaluate CIT § 1581(i) filings while waiting for later CAPE phases to be implemented.

Bottom Line

Learning Resources produced the potential for real savings in the construction industry at a time when costs continue to increase. But capturing those savings via refund requires fast, detailed action. CAPE Phase 1 is a meaningful simplification for many unliquidated and recently liquidated entries, but it will not wait. What flows back to a project, and to whom, depends on contract terms written long before the Supreme Court’s decision. Clients that paid IEEPA duties on construction materials should ensure ACE Portal access, entry inventories, and contract review today.

In the meantime, it bears repeating that there is no substitute for robust and detailed contract drafting as a primary method of reducing risk on construction projects, whether it is for tariffs or other uncertainties.