United States Court of Appeals 

for the Federal Circuit ______________________ 

FORD MOTOR COMPANY, 

Plaintiff-Appellant, 

v.

UNITED STATES,

Defendant-Appellee. 

______________________ 

2012-1186

______________________ 

Appeal from the United States Court of International 

Trade in No. 03-CV-0115, Senior Judge Judith M. Barzilay. 

______________________ 

Decided: May 3, 2013 

______________________ 

STEPHANIE A. DOUGLAS, Bush Seyferth & Paige PLLC, 

of Troy, Michigan, argued for plaintiff-appellant. Of 

counsel on the brief were ROBERT B. SILVERMAN, NED H.

MARSHAK, JOSEPH M. SPRARAGEN and FRANCES P.

HADFIELD, Grunfeld, Desiderio, Lebowitz, Silverman & 

Klestadt, LLP, of New York, New York. Of counsel was 

PAULSEN K. VANDEVERT, Ford Motor Company, of Dearborn, Michigan. 

EDWARD F. KENNY, Trial Attorney, Commercial Litigation Branch, Civil Division, United States Department 
2 FORD MOTOR CO v. US

of Justice, of New York, New York, argued for defendantappellee. Of counsel on the brief were STUART F. DELERY, 

Acting Assistant Attorney General, JEANNE E. DAVIDSON, 

Director; BARBARA S. WILLIAMS, Attorney in Charge, 

International Trade Field Office, New York, New York. 

Of counsel was BETH C. BROTMAN, Office of Assistant 

Chief Counsel, International Trade Litigation, United 

States Customs and Border Protection, of New York, New 

York. 

______________________ 

 Before NEWMAN, PROST and REYNA, Circuit Judges. 

Opinion for the court filed by Circuit Judge REYNA. 

Dissenting opinion filed by Circuit Judge NEWMAN. 

REYNA, Circuit Judge. 

Ford Motor Company (“Ford”) appeals from a final 

judgment of the Court of International Trade (the “Trade 

Court”) upholding the denial by the U.S. Customs and 

Border Protection (“Customs”) of Ford’s claims for postentry duty refunds. See Ford Motor Co. v. United States

(“Ford III”), 800 F. Supp. 2d 1349 (Ct. Int’l Trade 2011). 

We agree with the Trade Court that 19 U.S.C. § 1520(d) 

requires Ford to file the relevant certificates of origin 

(“COs”) within one year, and that its failure to do so could 

not be excused by 19 C.F.R. § 10.112. Nevertheless, 

because Customs has failed to adequately explain why it 

treats post-entry claims for refunds under § 1520(d) 

differently depending on whether they were filed on paper 

or through the reconciliation program,1 we vacate the 

Trade Court’s judgment and remand for further proceedings.

1 As we discuss below, the reconciliation program is 

an alternative means of filing post-entry NAFTA refund 

claims under § 1520(d).

 
 FORD MOTOR CO v. US 3

BACKGROUND

A 

The North American Free Trade Agreement 

(“NAFTA”) seeks to “eliminate barriers to trade in, and 

facilitate the cross-border movement of, goods and services between” the United States, Canada, and Mexico. 

NAFTA art. 102(1). One way in which it accomplishes 

this is by allowing NAFTA origin qualifying goods to enter 

into the United States duty free. See NAFTA art. 502. To 

obtain this preferential tariff treatment, an importer 

must:

a) make a written declaration, based on a valid 

Certificate of Origin, that the good qualifies as 

an originating good;

b) have the Certificate in possession at the time 

the declaration is made; [and]

c) provide, on the request of [Customs], a copy of 

the Certificate . . . .

NAFTA art. 502(1). The NAFTA also provides a mechanism by which parties who, for whatever reason, do not 

seek preferential treatment on entry may nevertheless 

obtain it later: 

Each Party shall provide that, where a good would 

have qualified as an originating good when it was 

imported into the territory of that Party but no 

claim for preferential tariff treatment was made 

at that time, the importer of the good may, no later than one year after the date on which the good 

was imported, apply for a refund of any excess duties paid as the result of the good not having been 

accorded preferential tariff treatment, on presentation of:

a) a written declaration that the good qualified as 

an originating good at the time of importation;
4 FORD MOTOR CO v. US

b) a copy of the Certificate of Origin; and

c) such other documentation relating to the importation of the good as that Party may require.

NAFTA art. 502(3). Congress codified this provision in 

§ 1520(d):

Customs Service may, in accordance with regulations prescribed by the Secretary, reliquidate an 

entry to refund any excess duties . . . paid . . . for 

which no claim for preferential tariff treatment 

was made at the time of importation if the importer, within 1 year after the date of importation, 

files, in accordance with those regulations, a claim 

that includes— 

(1) a written declaration that the good qualified 

under the applicable rules at the time of importation;

(2) copies of all applicable NAFTA Certificates of 

Origin (as defined in section 1508(b)(1) of this 

title), or other certificates or certifications of 

origin, as the case may be; and

(3) such other documentation and information relating to the importation of the goods as the 

Customs Service may require.

19 U.S.C. § 1520(d) (emphases added). The requirements 

of the statute are essentially identical to the requirements 

set forth in the NAFTA. Pursuant to this statute, Customs has promulgated regulations setting forth the procedures for filing post-entry claims for refunds and 

requiring additional documentation: 

A post-importation claim for a refund shall be 

filed by presentation of the following:

(1) A written declaration stating that the good 

qualified as an originating good at the time of 
 FORD MOTOR CO v. US 5

importation and setting forth the number and 

date of the entry covering the good;

(2) Subject to § 181.22(d) of this part, a copy of 

each Certificate of Origin . . . pertaining to the 

good; 

(3) A written statement indicating whether or not 

the importer of the good provided a copy of the 

entry summary or equivalent documentation to 

any other person. . . . 

(4) A written statement indicating whether or not 

the importer of the good is aware of any claim 

for refund, waiver, or reduction of duties relating to the good within the meaning of Article 

303 of the NAFTA . . . .

(5) A written statement indicating whether or not 

any person has filed a protest or a petition or 

request for reliquidation relating to the good 

under any provision of law . . . . 

19 C.F.R. § 181.32(b). In addition to the two documents 

specified in the statute, these regulations require three 

additional written statements. 

As is evident from the above, the treaty, statute, and 

regulations each require that a post-entry claim for refund of duties must be filed within one year of importation and must include the relevant COs. The regulations 

provide a penalty for late filing: a claim may be denied “if 

the claim was not filed timely, if the importer has not 

complied with the requirements of [19 C.F.R. §§ 181.31 - 

.33, or] if the Certificate of Origin . . . cannot be accepted 

as valid . . . .” 19 C.F.R. § 181.33(d). Similarly, “[i]f the 

importer fails to comply with any requirement under this 

part, including submission of a Certificate of Origin . . . , 

the port director may deny preferential tariff treatment to 

the imported good.” 19 C.F.R. § 181.23(a) (emphasis 
6 FORD MOTOR CO v. US

added); see also 19 C.F.R. § 181.31 (stating that Customs 

may refund duties subject to § 181.23).

Although Customs may deny claims when the relevant COs are not filed within one year, this requirement 

may be waived. See NAFTA art. 503(c) (“[A] Certificate of 

Origin shall not be required for . . . an importation of a 

good for which the Party into whose territory the good is 

imported has waived the requirement for a Certificate of 

Origin[.]”). Customs has waived the requirement to 

present certificates for:

(i) An importation of a good for which the port director has in writing waived the requirement 

for a Certificate of Origin because the port director is otherwise satisfied that the good qualifies for preferential tariff treatment under the 

NAFTA;

(ii) A non-commercial importation of a good; or

(iii) A commercial importation for which the total 

value of originating goods does not exceed 

US$2,500 . . . .

19 C.F.R. § 181.22(d)(1). This court has acknowledged 

§ 181.22(d)(1) as an exercise of Customs’ waiver power, 

concluding that although no reference to waiver appears 

in § 1520(d), the regulations provide for waiver either 

under 19 C.F.R. § 181.22(d)(1) or via the reconciliation 

program. Ford Motor Co. v. United States (“Ford II”), 635 

F.3d 550, 555-56 (Fed. Cir. 2011). Indeed, Customs’ 

power to waive the timely filing of COs was one of the 

grounds this court relied on in determining that the filing 

of COs was not a jurisdictional requirement. See id. at 

557. 

B 

In addition to the waiver provisions found in § 181.22, 

Customs has implemented the NAFTA’s waiver authority 
 FORD MOTOR CO v. US 7

via the “reconciliation program.”2 This program is separate from, but coexists with, the procedures described 

above for obtaining refunds under § 1520(d). Any importer may apply to participate in the program. The only 

requirements are (1) that participants file entry summaries through the Automated Broker Interface (“ABI”) and 

(2) that participants possess adequate bond coverage. 

Millions of entries have been processed through the 

program. 

The reconciliation program was developed through a 

series of notices in the Federal Register over a period of 

many years. E.g., Announcement of National Customs

Automation Program Test Regarding Reconciliation, 62 

Fed. Reg. 5673 (Feb. 6, 1997). Customs publishes a 

compliance guide (“the Guide”) that consolidates information about the program. See ACS Reconciliation Prototype: A Guide to Compliance, available at

http://www.cbp.gov/linkhandler/cgov/trade/trade_program

s/reconciliation/reference_desk/acs_recon_guide.ctt/acs_re

con_guide.pdf. The Guide is perhaps the best single 

source for information about the program.

The reconciliation program is designed to address the 

problem that at the time of importation, certain information might not yet be known. According to the Guide, 

More and more transactions involve final adjustments to an import price that may not be known 

until months after the merchandise is purchased 

and imported. Filers and ports previously made 

their own special arrangements to reduce the administrative burden of such adjustments. Howev2 This program is also known as the “reconciliation 

prototype.” The parties have used the terms “reconciliation prototype” and “reconciliation program” interchangeably. For consistency, this opinion will use the term 

“reconciliation program.” 

 
8 FORD MOTOR CO v. US

er, these local, informal versions of “reconciliation” were problematic because they varied a 

great deal from place to place, often had no legal 

basis, and lacked adequate financial controls.

Id. at 4. Relevant to this appeal, one such piece of information is the NAFTA origin eligibility of an imported 

item. Id. at 12. This is especially true in the case of goods 

that involve high numbers of inputs and components, 

such as automotive goods. Indeed, the reconciliation 

program was established to facilitate trade in goods 

important to NAFTA trade, such as the automotive sector.

Filing a NAFTA claim under the reconciliation program requires two steps: flagging the entry summary and 

filing the reconciliation. Id. at 9. In the flagging step, 

participants file entry summaries as they normally would 

through the ABI. Each entry submitted through the ABI 

can be flagged for reconciliation in up to four categories. 

One of those categories indicates that the importer desires 

a post-entry refund of duties pursuant to § 1520(d). The 

portions of each entry that are not flagged for reconciliation may be liquidated independently of those that are 

flagged, and may be protested separately. The flagged 

portions remain open and outstanding. 

The second step of the reconciliation process is the filing of reconciliations. A reconciliation finalizes outstanding information associated with previously flagged 

entries. As in § 1520(d) and § 181.31, NAFTA reconciliations—that is, reconciliations that seek to finalize a postentry claim for refund under § 1520(d)—must be filed 

within one year of the import date. They also must contain the three additional certifications required by 

§ 181.32(b)(3)-(5). Compare Guide at 67, with

§ 181.32(b)(3)-(5). Importantly, however, Customs has 

waived the requirement that the COs must be filed within 

one year of importation. See Modification of Nat’l Cus-
 FORD MOTOR CO v. US 9

toms Automation Program Test Regarding Reconciliation, 

62 Fed. Reg. 51181, 51182 (Sept. 30, 1997); Guide at 12. 

C 

With this background in mind, we turn to the facts of 

the instant case. Ford imports large numbers of automotive goods into the United States, many of which qualify 

for duty free entry under the NAFTA. Following the 

initial implementation of the NAFTA, it took several 

years for Ford and other automotive importers to develop 

a process for generating COs in advance of shipment in 

order to claim NAFTA preference at the time of entry. As 

a result, by April 27, 1998, Ford had filed over 2000 postentry claims for refunds of duties paid on NAFTA-eligible 

goods. 

Prior to the introduction of the reconciliation program, there was no paperless process for submitting the 

high volume of claims that producers such as Ford were 

required to submit. Because Ford was involved in the 

development of the reconciliation program, it was aware 

that such a system would eventually be put into place. In 

the interim, Ford attempted to work with the various 

ports of entry to develop a process for the electronic 

submission of § 1520(d) claims under which the requirement to file COs within one year would be waived. Some 

ports allowed Ford to make post-entry claims without 

submitting the COs. Ford attempted to obtain a similar 

agreement with the port of Detroit, but no agreement was 

reached. Nevertheless, for a period of time Ford believed 

that the Detroit port had authorized it to submit claims 

electronically. As a result, Ford filed over 600 post-entry 

claims for refund electronically without submitting a hard 

copy CO. 

This case concerns transactions in which Ford imported goods, paid the tariffs, and later filed a claim for 

refund. In the transactions at issue, Ford filed its claim 

before the one-year deadline but did not file the corre-
10 FORD MOTOR CO v. US

sponding COs until after the deadline. The parties have 

agreed to use one entry, No. 231-2787386-9 (“the Entry”), 

as a test case for these transactions. The Entry was 

imported into the United States on June 27, 1997, via the 

Detroit port of entry. Ford did not assert at the time of 

entry that its goods were eligible for preferential treatment under the NAFTA. Ford electronically filed postentry duty refund claim number 3801-98-351235 on May 

13, 1998, less than one year after the date of importation, 

asserting that it was entitled to reliquidation and a duty 

refund under 19 U.S.C. § 1520(d)(ii). The May 13 claim 

did not, however, include copies of the COs, which Ford 

submitted on November 5, 1998, over a year after the date 

of importation. Ford had not obtained a written waiver 

under the terms of § 181.22(d)(1). On May 21, 1999, 

Customs denied Ford’s claim, stating that “[t]he NAFTA 

Certificate of Origin was not furnished within one year of 

the date of importation.” J.A. 135. Ford protested the 

denial of the claim, and Customs denied the protest in 

August 2002. HQ 228654 (Aug. 29, 2002), available at

2002 WL 31641984. 

Ford challenged Customs’ decision in the Trade Court. 

The Trade Court concluded that the requirement to file a 

CO within one year was jurisdictional and dismissed 

Ford’s challenge. See Ford Motor Co. v. United States

(“Ford I”), No. 03-00115, 2010 WL 98699 (Ct. Int’l Trade 

Jan. 12, 2010). This court reversed, holding that “so long 

as notice of a party’s § 1520(d) claim is timely filed within 

one year of importation, failure to adhere to § 1520(d)’s 

formalities, such as filing a certification of origin, will not 

deprive the Trade Court of jurisdiction . . . even if such 

failure may end up being dispositive of the party’s claim.” 

Ford II, 635 F.3d at 557. We explicitly declined to decide 

whether Customs was required to accept Ford’s late-filed 

COs under 19 C.F.R. § 10.112. Id. at 558.

On remand, the Trade Court again upheld Customs’ 

determination, noting that “§ 1520(d) and the implement-
 FORD MOTOR CO v. US 11

ing regulations require importers to file within one year of 

importation copies of applicable certificates of origin.” 

Ford III, 800 F. Supp. 2d at 1352. The court rejected 

Ford’s argument that 19 C.F.R. § 10.112 could excuse the 

late filing of COs. Id. at 1353-54. Ford had also argued 

that Customs improperly treated claims under § 1520(d) 

differently from claims made under the reconciliation 

program, waiving the one-year requirement under the 

reconciliation program but refusing to do so for § 1520(d) 

claims. In a footnote and without analysis, the court 

dismissed this argument, stating that Ford’s “entries were 

not subject to the program and the court’s inquiry must 

focus on the statutory and regulatory scheme which 

governed [Ford’s] entries.” Id. at 1352 n.5.

Ford again appeals to this court. We have jurisdiction 

pursuant to 28 U.S.C. § 1295(a)(5).

DISCUSSION

Ford argues that (1) Customs must accept the latefiled COs because it has waived the one-year deadline for 

filing COs under the reconciliation program, and to do 

otherwise here would result in two conflicting interpretations of § 1520(d); and (2) that pursuant to 19 C.F.R. 

§ 10.112, Customs is required to accept the late-filed 

documents because they were presented prior to final 

liquidation. Because the Trade Court devoted most of its 

analysis to the latter argument, we begin with § 10.112.

A 

Ford’s argument that Customs was required to accept 

the late-filed COs in this case breaks down into two parts: 

(1) that § 1520(d) does not expressly require COs to be 

filed within one year, and (2) that 19 C.F.R. § 10.112 

therefore requires Customs to accept the late-filed COs as 

timely. Customs disagrees on both points. We address 

each argument in turn.
12 FORD MOTOR CO v. US

1 

Ford begins by arguing that § 1520(d), when read in 

conjunction with Customs regulations, does not require 

importers to file COs within one year. More particularly, 

Ford argues that although the claim must be filed within 

one year, the COs may be filed later. We disagree.

The NAFTA agreement could not be more clear: an 

importer may apply for a post-entry refund “no later than 

one year after the date on which the good was imported.” 

NAFTA art. 502(3). Application is made by presenting “a 

written declaration that the good qualified as an originating good at the time of importation” and “a copy of the 

Certificate of Origin.” Id. The statute is essentially 

identical. See § 1520(d). The regulations echo this requirement, adding only a reference to the provisions of 

§ 181.22(d) allowing the requirement to be waived under 

certain conditions. 19 C.F.R. § 181.33. The NAFTA, the 

statute, and the regulations each reflect the intent of 

Congress that, at a minimum, these two items must be 

presented within one year of importation to initiate a 

claim. See Xerox Corp. v. United States, 423 F.3d 1356, 

1362 (Fed. Cir. 2005) (citing H.R. Rep. No. 103-361(I), at 

38 (1993), 1993 U.S.C.C.A.N. 2552, 2594 (“In order to 

qualify for such reliquidation, the importer must, within 

one year after the date of importation, file a NAFTA claim 

in accordance with the implementing regulations, which 

includes . . . copies of all applicable NAFTA certificates of 

origin . . . .”); S. Rep. No. 103-189, at 22 (same)).

The requirement that COs be filed within one year is 

not negated by the fact that the NAFTA also allows 

parties to require the submission of “other documentation 

relating to the importation of the good” as part of the 

application for refund. See NAFTA art. 502(3). Ford 

suggests that this requirement allows Customs to request 

additional documentation after an application for refund 

has been made, and that, at least when the application is 
 FORD MOTOR CO v. US 13

made at exactly one year, such a request would necessarily require Customs to accept documentation after the oneyear deadline. We are not persuaded. It is true that, like 

the NAFTA, § 1520(d)(3) allows Customs to require 

additional documentation as part of the application. But 

the ability to require more does not relieve importers from 

the clear obligation imposed by the NAFTA provisions 

and statute to file their claim—including the relevant 

COs—within one year. Furthermore, Customs has in fact 

exercised its power to require additional documentation, 

but, contrary to Ford’s argument, has applied the same 

one-year deadline to the additional documents. See 19 

C.F.R. § 181.32(b)(3)-(5). Taken to its logical conclusion, 

Ford’s argument would permit importers to submit claims 

under § 1520(d) without any of the required documentation and without regard to the one-year deadline, so long 

as the required documents were submitted before liquidation. We do not believe § 1520(d)(3) permits such a result. 

Xerox established that jurisdiction does not exist unless a claim is filed within one year of importation. Ford 

II explained that, when a claim is filed within one year, 

jurisdiction exists regardless of whether the claim contains the relevant COs. We now hold that submission of 

the relevant COs within one year of importation is a 

substantive requirement of § 1520(d), and a claim may be 

denied if the COs have not been filed within that time and 

the requirement to file them has not been waived. Ford 

failed to provide the COs within the one-year deadline in 

this case. It therefore may prevail only if it can identify 

some basis upon which Customs was both permitted and 

required to excuse the deadline in this case.
14 FORD MOTOR CO v. US

2 

Ford points to 19 C.F.R. § 10.112 as the authority it 

claims requires Customs to accept its late-filed COs.3 

Section 10.112, which predates NAFTA by several decades, provides that “[w]henever a free entry or a reduced 

duty document . . . required to be filed in connection with 

the entry is not filed at the time of the entry . . . , but 

failure to file it was not due to willful negligence or fraudulent intent, such document, form or statement may be 

filed at any time prior to liquidation of the entry or, if the 

entry was liquidated, before the liquidation becomes 

final.” 19 C.F.R. § 10.112. 

The Trade Court concluded that it could not read 

§ 10.112 to excuse the requirement to file COs within one 

year. Ford III, 800 F. Supp. 2d at 1354 (“The court cannot 

read § 10.112 to ease the content requirements for claims 

under § 1520(d) and §§ 181.31-.32 as it would render 

fundamental aspects of the statute and regulations 

void.”). In particular, Ford’s theory “would force the court

to read out of the statute and regulations the clear instruction that importers must file ‘within 1 year after the 

date of importation . . . a claim that includes . . . copies of 

all applicable NAFTA Certificates of Origin.’” Id. at 1353-

54 (quoting § 1520(d)). The court observed that the 

importance of the one-year deadline—which was “thrice 

repeated in NAFTA, the corresponding statute, and 

Customs’ implementing regulations”—was “obvious,” id.

at 1354, and that “the legislative history of § 1520(d) 

‘overwhelmingly reiterates the one-year time period for 

3 Ford did not seek to file the COs under § 10.112, 

but makes this argument only in its appeal. In Ford II, 

we reasoned that this argument was properly made on 

appeal because Customs’ denial of Ford’s § 1520(d) claim 

could be viewed as implicitly deciding not to accept Ford’s 

late-filed COs under § 10.112. 635 F.3d at 557.

 
 FORD MOTOR CO v. US 15

claiming entitlement to a refund premised on NAFTA 

eligibility.’” Id. (quoting Xerox, 423 F.3d at 1362). The 

court also took note of this court’s statement in Xerox that 

“an importer cannot use section 10.112 to circumvent the 

clear mandate of NAFTA and 19 U.S.C. § 1520(d).” Id. at 

1353 (quoting Xerox, 423 F.3d at 1365). Finally, the court 

noted that as the specific regulation, § 181.31 (which 

applies expressly to post-entry claims for refunds of 

duties) would control over § 10.112. Id. at 1354. It rejected Ford’s argument that Aviall of Tex., Inc. v. United 

States, 861 F. Supp. 100, 105 (Ct. Int’l Trade 1994), and 

Gulfstream Aerospace Corp. v. United States, 981 F. Supp. 

654, 667 (Ct. Int’l Trade 1997), required otherwise, noting 

that while those cases supported § 10.112’s preeminence 

over other regulatory provisions, “neither address[ed] the 

issue of whether § 10.112 would apply if its application 

would render meaningless statutory (and treaty-based) 

requirements.” 800 F. Supp. 2d at 1354.

We agree with the Trade Court. As discussed above, 

the treaty and statute clearly require the COs to be filed 

within one year of importation. It is true, as the Ford III

court observed, that the Trade Court has held that 

§ 10.112 is remedial in nature and should be liberally and 

broadly construed. See Gulfstream, 981 F. Supp. at 667; 

Aviall, 861 F. Supp. at 105. But both Aviall and Gulfstream dealt with § 10.112 in relation to other regulations. Here, reading § 10.112 broadly would conflict with 

the statute. This it cannot do. Section 1520(d) unambiguously requires the COs to be submitted within one year. 

Both this court and Customs “must give effect to the 

unambiguously expressed intent of Congress.” Chevron, 

U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 

837, 842 (1984). Accordingly, we will not read § 10.112 in 

a manner that would eliminate the one-year deadline 

from the statute. See Xerox, 423 U.S. at 1365 (“[W]e may 

not construe 19 C.F.R. § 10.112 to increase the one-year 

time period for making a post-importation NAFTA claim 
16 FORD MOTOR CO v. US

. . . .”). The Trade Court was correct that the COs were 

required to be filed within one year and that § 10.112 did 

not require Customs to accept them after one year had 

passed.

B

We now return to Ford’s first argument: that Customs must waive the one-year deadline here because it 

has done so under the reconciliation program. Ford 

contends that to do otherwise would impermissibly apply 

two different interpretations to § 1520(d). Customs 

responds that waiver for the reconciliation program is 

justified by the requirements that importers must satisfy 

to be eligible to participate, which it contends are designed to satisfy Customs that covered goods qualify for 

NAFTA treatment. 

As an initial matter, we observe that Customs undoubtedly has the power to waive the one-year deadline 

for the filing of COs. As this court noted in Ford II, 

Article 503(c) of the NAFTA explicitly provides that the 

requirement to present a CO can be waived. 635 F.3d at 

555. In fact, “[w]hile § 1520(d) does not specifically refer 

to the waiver provision of NAFTA Article 503(c), it is 

obvious that § 1520(d) was designed in part to permit the 

implementation of Article 503(c)’s waiver authority via 

Customs’ regulations.” Id. Ford does not dispute that 

Customs has the authority to waive presentation of the 

COs; to the contrary, it argues that Customs has properly 

waived presentation of COs in the reconciliation program, 

and that it was improper for Customs to claim a lack of 

authority to exercise its waiver power in this case. 

It is undisputed that Ford’s request for a refund of duties paid on the Entry was not made through the reconciliation program. Customs therefore argues, and the Trade 

Court agreed, that the reconciliation program is not 

relevant to this proceeding. See Ford III, 800 F. Supp. 2d 

at 1352 n.5. We disagree. It is true, of course, that Ford 
 FORD MOTOR CO v. US 17

did not process its post-entry refund request for the Entry 

through the reconciliation program, and that the specific

waiver requirements of the program do not apply to the 

entry. But that is not the only way in which the reconciliation program is relevant. When the Entry was imported 

on June 27, 1997, the reconciliation program had already 

been announced, but did not yet include post-entry 

NAFTA refunds. See 62 Fed. Reg. 5673. The reconciliation program was modified to include NAFTA eligibility 

and to waive the CO requirement on Sept. 30, 1997. 62 

Fed. Reg. 51181, 51181 (Sept. 30, 1997). This was after 

the Entry was imported, but before the COs were due. 

Those modifications became effective on Oct. 1, 1998. Id. 

Ford’s claim for post-entry refund of duties paid on the 

Entry was denied on May 21, 1999. Thus, Customs had 

announced its intention to waive the CO requirement 

under the reconciliation program prior to the one-year 

deadline for the Entry, and the change was effective prior 

to the denial of Ford’s claim for refund. Indeed, the record 

reflects that Customs has approved Ford’s post-entry 

requests for refunds made through the reconciliation 

program when Ford did not submit the related COs 

within one year. The reconciliation program is therefore 

relevant to the extent that it shows whether Customs 

applied a different interpretation of § 1520(d) to claims 

Ford submitted under the reconciliation program than to 

Ford’s traditional § 1520(d) claims—in particular, the 

Entry.

Absent a reasonable explanation, an agency may not 

simultaneously interpret the same statute in two different 

ways. In Dongbu Steel Co. v. United States, 635 F.3d 

1363, 1365 (Fed. Cir. 2011), we examined the Department 

of Commerce’s (“Commerce”) interpretation of an ambiguous statute that could be read to allow Commerce to use 

or not to use an accounting practice called “zeroing” in 

antidumping investigations. We had repeatedly affirmed 

Commerce’s practice of using zeroing in both investiga-
18 FORD MOTOR CO v. US

tions and administrative reviews. Subsequently, in 

response to an adverse World Trade Organization decision, Commerce stopped using zeroing in investigations 

but continued to use it in administrative reviews. In 

reviewing this new policy, we observed that the statute 

was ambiguous, and that we had previously held that 

either practice, on its own, was reasonable. See id. at 

1372. Furthermore, it was not unreasonable for Commerce to change its interpretation of the statute. However, as a general rule, it was unreasonable for an agency to 

simultaneously interpret the statute one way in investigations and another in administrative reviews. Where an 

agency simultaneously applied different interpretations to 

a statute, it was required to “provide an explanation for 

why the statutory language supports its inconsistent 

interpretation.” Id. Because the record contained no such 

explanation, we remanded to allow Commerce to explain 

its reasoning why the statute should be interpreted in two 

different ways. Id. at 1372-73; see also Nat’l Org. of 

Veterans’ Advocates, Inc. v. Sec’y of Veterans Affairs, 260 

F.3d 1365, 1368 (Fed. Cir. 2001) (remanding for the 

government to explain why it interpreted the identical 

language in two related statutes in two different ways); 

SKF USA Inc. v. United States, 263 F.3d 1369, 1381-82 

(Fed. Cir. 2001) (holding that to overcome the presumption that the same term had the same meaning in different statutes, Commerce was required to provide a 

reasonable explanation).

Although Ford raised the argument that Customs applies different interpretations to § 1520(d), the Trade 

Court has not yet addressed it. In Ford I, the Trade 

Court discussed the facts only briefly before granting 

Customs’ motion to dismiss for lack of jurisdiction on the 

grounds that the CO had been filed more than one year 

after the goods were imported. Our reversal of that 

dismissal in Ford II necessarily did not address whether 

Customs had interpreted § 1520(d) in conflicting ways. In 
 FORD MOTOR CO v. US 19

Ford III, the Trade Court dismissed Ford’s “conflicting 

interpretations” argument in a footnote, stating: “[Ford’s] 

reference to Customs’ Reconciliation Program, which 

waives the necessity of submitting certificates of origin 

with refund claims, is inapposite. [Ford’s] entries were 

not subject to the program and the court’s inquiry must 

focus on the statutory and regulatory scheme which 

governed [the] entries.” Ford III, 800 F. Supp. 2d at 1352 

n.5 (internal citation omitted). Given this procedural 

history, it is not surprising that the record provides no 

explanation for Customs’ divergent approaches to exercising its § 1520(d) waiver power.

Customs did provide some indication of its reasoning 

on appeal. In its brief, Customs argued that the reconciliation program is consistent with § 181.22(d)(1)(i) because 

Customs satisfies itself that imported goods will qualify 

for NAFTA treatment when it accepts participants into 

the reconciliation program. Appellee’s Br. 19. It 

acknowledged that it had waived the one-year deadline 

under the reconciliation program, but asserted that this 

was irrelevant. Id. at 18-19. When pressed on this issue 

at oral argument, Customs took a different position, 

arguing that the fact that importers must apply to and be 

accepted to the reconciliation program justifies treating 

reconciliation claims differently from traditional claims. 

Oral Argument at 19:20, available at

http://oralarguments.cafc.uscourts.gov/default.aspx?fl=20

12-1186.mp3. But this argument is belied by Customs’ 

minimal requirements for acceptance in the program, as 

well as by the fact that Ford has had its own entries 

treated differently depending on which vehicle it used to 

file them.

The record in this case so far is inadequate to decide 

whether there is a reasonable explanation for treating 

traditional § 1520(d) claims differently than § 1520(d) 

claims made under the reconciliation program. It is clear 

that importers who participate in the reconciliation 
20 FORD MOTOR CO v. US

program are treated differently for purposes of waiver 

under § 1520(d) than those who do not. Indeed, Customs 

has treated Ford’s traditional claims different from Ford’s 

reconciliation program claims. The Trade Court has yet 

to consider whether this different treatment is simply a 

valid exercise of Customs’ waiver authority—similar to 

§ 181.22(d)(1)(i)-(iii)—or whether it shows that Customs 

applies different interpretations to the statute depending 

on the manner in which claims for refunds are submitted. 

Nor has the court considered whether Customs has a 

reasonable explanation for treating these classes of 

claimants differently. Accordingly, we remand for the 

Trade Court to consider these issues in the first instance. 

As was the case in Dongbu, if Customs cannot provide a 

reasonable explanation for the different standards, it is 

“free to choose a single consistent interpretation of the 

statutory language.” 635 F.3d at 1373.

CONCLUSION

The NAFTA and § 1520(d) require that COs be presented within one year of the date of importation. Customs has the power to waive this requirement, see Ford II, 

635 F.3d at 555, but did not do so in this case. Yet at the 

same time, Customs has waived the requirement to 

present COs for all participants in the reconciliation 

program. Absent a reasonable explanation, Customs may 

not exercise its waiver power in a manner that effectively 

interprets the statute in different ways for different types 

of post-entry refund claims. Because the Trade Court did 

not reach this issue, we vacate its judgment and remand 

for further proceedings in accordance with this opinion.

VACATED AND REMANDED
United States Court of Appeals 

for the Federal Circuit ______________________ 

FORD MOTOR COMPANY, 

Plaintiff-Appellant, 

v.

UNITED STATES,

Defendant-Appellee. 

______________________ 

2012-1186

______________________ 

Appeal from the United States Court of International 

Trade in No. 03-CV-0115, Senior Judge Judith M. Barzilay.

______________________ 

 

NEWMAN, Circuit Judge, dissenting. 

I agree that the statute and regulations require that 

the refund claim must be filed within one year of importation. However, the issue here is not the timely filing of 

the claim for refund; the timeliness of that filing is not 

disputed. The issue is whether the Customs regulation, 

19 C.F.R. § 10.112, that permits later filing of a supporting “document” if certain conditions are met, applies to 

the Certificate of Origin that is required in order to obtain 

the claimed refund.
2 FORD MOTOR CO v. US

§ 10.112 Filing free entry documents or reduced 

duty documents after entry.

Whenever a free entry or a reduced duty document, form, or statement required to be filed in 

connection with the entry is not filed at the time 

of the entry or within the period for which a bond 

was filed for its production, but failure to file it 

was not due to willful negligence or fraudulent intent, such document, form, or statement may be 

filed at any time prior to liquidation of the entry 

or, if the entry was liquidated, before the liquidation becomes final . . .

The Court of International Trade sustained Customs’ 

ruling that the Certificates of Origin cannot be filed after 

the year within which the claim was filed, and this court 

agrees, ruling that the NAFTA statute bars applying 

Regulation § 10.112 to NAFTA importations. The NAFTA 

statute is silent as to any such bar.

The NAFTA statute and regulations do not overrule 

or qualify or even mention this earlier regulation, although this regulation was not obscure, and has been 

widely applied in Customs transactions.1 It cannot be 

presumed that by silence such an important and useful 

benefit was intended to be eliminated as to Canada and 

Mexico even as the purpose of the NAFTA is to support

and ease trade with Canada and Mexico. It is not likely 

that the treaty intended, by silence, to remove this flexibility from the NAFTA nations. 

The provisions of the NAFTA statute and regulations, 

with a one-year limitation for filing refund claims, track 

similar time-limits in other Customs statutes, which are, 

1 Additionally, applicable regulations do not mandate denial of claims with late Certificates of Origin, but 

rather provide that the port director may deny these 

claims. See 19 C.F.R. §§ 181.23, 181.33.

 
 FORD MOTOR CO v. US 3

without dispute, subject to § 10.112. If it were intended 

that only imports from North American nations would no 

longer have this flexibility, surely the NAFTA treaty, and 

the implementing statutes and regulations, would have 

mentioned it. The court’s opinion recognizes that the 

legislative history is silent, but nonetheless endorses the 

silent change in law. Silence cannot cancel and withdraw

a long-standing provision of applicable law and recognized 

procedure.

Ford complied with the one-year filing period for all of 

the refund applications—with a month to spare. In 

accordance with § 10.112, the “documents”—the required 

Certificates of Origin—were filed “prior to liquidation.” 

Thus the only appropriate inquiry under § 10.112 is 

whether there was willful negligence or fraudulent intent

in the time of filing, for if not, these documents were 

timely filed. 

Precedent is in accord. In Gulfstream Aerospace Corp. 

v. United States, 981 F. Supp. 654 (Ct. Int’l. Trade 1997)

an aircraft parts importer sought duty-free treatment of 

entries that only became eligible for such treatment under 

the Agreement on Trade in Civil Aircraft after their 

reclassification by the United States Customs Service. 

Customs denied the importer’s protest, on the ground that 

the importer had not filed the required certifying documents simultaneously with parts’ entry summaries. At 

issue was whether 19 U.S.C. § 1520(c)(1) forgave the late 

certifying documents if filed prior to liquidation. The 

Court of International Trade held that the importer was 

entitled to duty-free treatment under 19 U.S.C. § 

1520(c)(1), observing that the remedial nature of § 10.112 

provided the proper ground for relief:

At the time [19 C.F.R. § 10.112] was promulgated, 

Customs stated that the purpose of the regulation 

was “to relieve certain existing restrictions to the 

filing of free entry documents.” This regulation
4 FORD MOTOR CO v. US

provides for the late filing of duty free entry documents or reduced duty documents after entry. 

The language of 19 C.F.R. § 10.112 does not limit 

its application to certain documents or exclude 

certain documents. In addition, Customs did not 

amend 19 C.F.R. § 10.112 when it promulgated 

the obligatory language of 19 C.F.R. § 10.183 nor 

did Customs state that 19 C.F.R. § 10.183 was an 

exception to the broad remedial effect of 19 C.F.R. 

§ 10.112. Customs promulgated 19 C.F.R. §

10.112 to alleviate onerous filing requirements 

arising out of the narrow construction of duty entitlements; therefore, 19 C.F.R. § 10.112 should be 

liberally construed.

Id. at 667 (emphases in original) (quoting Aviall of Tex., 

Inc. v. United States, 861 F. Supp. 100 (Ct. Int’l Trade 

1994)). 

Customs distinguishes Gulfstream from this case, arguing that Gulfstream was decided under 19 U.S.C. § 

1520(c)(1) (since repealed) and by noting that Ford has 

not claimed that its failure to timely file the Certificates 

of Origin was the result of a § 1520(c)(1)-type “clerical 

error, mistake of fact or other inadvertence.” Customs 

also argued that § 10.112 cannot apply because the Certificates of Origin were required “at time of” entry. However, the Gulfstream court resolved any distinction between 

the phrase “at time of” entry and “in connection with” 

entry, concluding: “The Court finds that Customs’ interpretation of the phrase ‘in connection with’ entry has been 

inconsistent over time, and Customs’ actual practice 

indicates no intention to create a distinction between this 

phrase and ‘at time of’ entry.” Gulfstream, 981 F. Supp.

at 668. Customs’ arguments regarding any significant 

distinction between “at time of” entry and “in connection 

with” entry in the instant case are equally unpersuasive.
 FORD MOTOR CO v. US 5

The Court of International Trade, in Corrpro I, 

squarely addressed the issue of whether § 10.112 excuses 

the late filing of Certificates of Origin for § 1520(d) purposes. See Corrpro Cos. v. United States (“Corrpro I”), 28 

CIT 1523 (2004) (not reported in F. Supp.), rev'd on 

jurisdictional grounds, 433 F.3d 1360 (Fed. Cir. 2006). In 

Corrpro I the importer, Corrpro Companies, challenged 

Customs’ determination that merchandise was not entitled to duty-free NAFTA treatment. Corrpro did not 

claim preferential treatment under NAFTA within one 

year of the date of importation under § 1520(d). However, 

Corrpro filed protests to Customs’ liquidation under 19 

U.S.C. § 1514(a), arguing that the goods were classifiable 

as free of duty under NAFTA. Adopting the reasoning in 

Aviall that § 10.112 “does not limit its application to 

certain documents” and should be interpreted broadly, the 

court held that § 10.112 applies to NAFTA refund claims: 

“[T]he Court holds that 19 C.F.R. § 10.112 supersedes 19 

C.F.R. §§ 181.31 and 181.32 . . . [U]nder [§ 10.112], Corrpro may submit its NAFTA Certificates of Origin, at any 

time prior to liquidation, barring willful negligence or 

fraudulent intent in compliance.” Corrpro I, 28 CIT at 

1531.

In Corrpro II, this court held that claim-notice documents must be submitted within § 1520(d)’s one year limit 

or the Court of International Trade does not have jurisdiction. Corrpro Cos. v. United States (“Corrpro II”), 433 

F.3d 1360 (Fed. Cir. 2006); see also Xerox Corp. v. United 

States, 423 F.3d 1356, 1365 (Fed. Cir. 2005) (“[A]n importer cannot use section 10.112 to circumvent the clear 

mandate of NAFTA and 19 U.S.C. § 1520(d) that allows 

an importer only one year to file a claim in the first instance for NAFTA treatment.” (emphasis added)).

In both Aviall and Gulfstream the Court of International Trade stated that “§ 10.112 should be liberally 

construed” over other regulatory provisions. Aviall, 861 

F. Supp. at 105; Gulfstream, 981 F. Supp. at 667. In the
6 FORD MOTOR CO v. US

earlier Ford ruling this court rejected Customs’ position, 

and remanded for proper application of the NAFTA 

provisions. Section 10.112 has never been held to be 

“meaningless” as applied to NAFTA importations, as the 

majority now holds.

Precedent supports the distinction between late 

claims-notice documents, which are non-waiveable “jurisdictional requirements,” and the subsequent filing of 

supporting documents for timely filed claims. Gulfstream

cites this distinction, noting “[I]t is clear that the regulation [§ 10.112] was promulgated to make the privilege of 

free entry less onerous by extending the time for filing of 

claim-supporting documents and, thereby, enabling free 

entry of merchandise that would otherwise have been 

excluded from such treatment.” Gulfstream, 981 F. Supp.

at 667 (emphasis added); Mattel, Inc. v. United States, 624 

F.2d 1076, 1079 n.8 (CCPA 1980) (internal quotation 

omitted).

The majority opinion states that “[t]aken to its logical 

conclusion, Ford’s argument would permit importers to 

submit claims under § 1520(d) without any of the required 

documentation and without regard to the one-year deadline, so long as the required documents were submitted 

before liquidation.” Maj. Op. at 13 (emphasis added). This 

is inaccurate. Ford’s argument is that a claim exists 

when the importer files a request with Customs for a 

refund of duties and alleges its goods qualify for duty-free 

treatment. Ford argues that a Certificate of Origin must 

accompany, but is distinct from, the refund “claim.”

The Court of International Trade correctly acknowledged that this court, in Ford II, distinguished “notice of a 

party’s § 1520(d) claim” from “the accompanying certificate of origin.” Ford Motor Co. v. United States, 800 F. 

Supp. 2d 1349, 1352 n.3 (Ct. Int’l Trade 2011). Section 

1520(d), working harmoniously with § 10.112, would 

require claim-notice documents to be filed “within 1 year 
 FORD MOTOR CO v. US 7

after the date of importation,” and claim-supporting

documents to be filed “before the liquidation becomes 

final.” (quoting § 1520(d); § 10.112). This consistent 

interpretation of the statute, regulations and precedent 

permits the requirements of § 1520(d), § 10.112 and the 

reconciliation program to legally coexist. See Clark v. 

Martinez, 543 U.S. 371, 378 (2005) (explaining that a

statute “cannot, however, be interpreted . . . both [ways] 

at the same time”); Glover v. West, 185 F.3d 1328, 1332 

(Fed. Cir. 1999) (explaining that courts must “attempt to 

give full effect to all words contained within th[e] statute 

[and] regulation[s], thereby rendering superfluous as little 

of the statutory or regulatory language as possible”).

In entering into the NAFTA, and as ratified and codified, neither the executive nor the legislative bodies nor 

any historical documentation we have found reflected an 

intent to remove the benefit of the pre-existing general

regulatory provision of § 10.112. I have unearthed no hint 

of an intent to add this burden and rigor to trade with 

Canada and Mexico. The entirety of this history shows a 

contrary intent, to facilitate such trade.

This view is reinforced by NAFTA Article 503(c) and 

the subsequently adopted reconciliation program, in 

which the filing of Certificates of Origin is waived entirely. The policy reflected in this program reinforces the 

view that it is incorrect to hold that the NAFTA statute 

removed, from NAFTA importations, flexibilities in filing

claim-supporting documentation and access to § 10.112.

The record shows, and Customs does not deny, that 

Ford worked diligently to meet NAFTA requirements 

throughout the uncertain implementation of Customs’ 

refund procedures. Certificates of Origin from exportersuppliers often lagged behind merchandise entries by 

many months. To account for this, Ford implemented 

internal procedures to ensure that NAFTA duty-free 

claims were filed only for eligible parts and materials, and 
8 FORD MOTOR CO v. US

only after the necessary Certificates were in-hand. Between 1996 and 1997, Customs conducted five separate 

“NAFTA Origin Verification” audits of all of Ford’s

NAFTA preference claim activities. The final report of 

one of the audits stated that Ford’s record keeping was a 

“noteworthy accomplishment.” J.A. 154. Ford claims that 

this meant, among other things, that “Customs knew that 

Ford had in its possession NAFTA CO’s to support all of 

Ford’s NAFTA preference claims.” Id.

The record also shows that the process for submitting 

duty-free proof documents varied greatly from port to 

port, and differed depending on which Customs filing 

vehicle was used. For example, while Customs in Detroit 

was denying Ford’s § 1520(d) claims for failure to timely 

file the Certificates of Origin, Customs ports in Buffalo, 

Laredo, and El Paso were processing and refunding Ford’s 

claims where Ford did not file the Certificates with Customs within one year of the date of entry. At these other 

ports Ford submitted Certificates of Origin if and when 

Customs requested that Ford do so. Ford negotiated with 

Customs for nearly two years in an attempt to establish a 

mechanism to efficiently submit Certificates of Origin in 

support of electronically filed claims. Ford seems to have 

largely coped with Customs’ uncertain and inconsistent 

duty-free refund process despite Customs’ belated guidance on filing of Certificates. 

At a minimum, if Customs wishes to change its position or remove the application of § 10.112 from NAFTA 

importations, Customs should have given notice of proposed clear regulations, and enforced a uniform practice 

at all ports. It is clear that Ford acted reasonably and in 

accordance with precedent and custom. Although this 

court now remands to give Customs an opportunity to 

formulate a post-hoc reasonable explanation for its actions, Customs has had an opportunity to establish its 

actions as reasonable and has failed. See Maj. Op. at 19. 
 FORD MOTOR CO v. US 9

I would hold that Ford’s Certificates were timely filed, 

and end this litigation.