  United States Court of Appeals
      for the Federal Circuit
                ______________________

             FORD MOTOR COMPANY,
                Plaintiff-Appellant

                           v.

                  UNITED STATES,
                  Defendant-Appellee
                ______________________

                      2014-1581
                ______________________

   Appeal from the United States Court of International
Trade in No. 1:03-cv-00115-JMB, Senior Judge Judith M.
Barzilay.
                 ______________________

               Decided: January 6, 2016
                ______________________

    STEPHANIE A. DOUGLAS, Bush Seyferth & Paige,
PLLC, Troy, MI, argued for plaintiff-appellant. Also
represented by NED H. MARSHAK, JOSEPH MARTIN
SPRARAGEN, ROBERT B. SILVERMAN, Grunfeld, Desiderio,
Lebowitz, Silverman & Klestadt LLP, New York, NY.

    EDWARD FRANCIS KENNY, International Trade Field
Office, Commercial Litigation Branch, Civil Division,
United States Department of Justice, New York, NY,
argued for defendant-appellee. Also represented by JOYCE
R. BRANDA, JEANNE E. DAVIDSON, AMY M. RUBIN.
                 ______________________
2                                 FORD MOTOR COMPANY      v. US




    Before PROST, Chief Judge, LOURIE and REYNA, Circuit
                          Judges.
      Opinion for the court filed by Chief Judge PROST.
      Dissenting opinion filed by Circuit Judge REYNA.
PROST, Chief Judge.
    This appeal concerns Customs and Border Protec-
tion’s (“Customs”) decision to treat Ford Motor Company’s
(“Ford”) duty refund claims under the North American
Free Trade Agreement (“NAFTA”) differently depending
on whether those claims were filed traditionally or
through an electronic process known as “reconciliation.”
We previously remanded this long-running dispute to the
Trade Court for a narrow inquiry: whether there is a
reasonable explanation for Customs’ decision to treat the
claims differently. Ford Motor Co. v. United States, 715
F.3d 906, 917 (Fed. Cir. 2013) (“Ford IV”). On remand,
Customs first explained that traditional refund claims
and reconciliation claims are governed by different im-
plementing statutes; thus, Customs was not inconsistent
in its treatment of identical claims. Second, Customs
noted that even if both types of claims were governed by
the same statute, procedural differences among tradition-
al and reconciliation claims justify treating the claims
differently. The Court of International Trade (“Trade
Court”) found Customs’ explanation reasonable. For the
reasons stated below, we affirm.
                       BACKGROUND
    We provided a detailed explanation of the background
of this case in Ford IV. 715 F.3d at 908–12. Thus, we
only briefly recite the pertinent facts here. Ford imported
automotive goods into the United States and paid the
duties on them. Ford later claimed NAFTA preference on
those imports and filed for refund of the duties it paid
under 19 U.S.C. § 1520(d). The parties agreed to rely on
FORD MOTOR COMPANY    v. US                                3



one entry as the test case: a June 27, 1997 entry via
Detroit. Under § 1520(d)’s default procedures implement-
ed by 19 C.F.R. § 181.22, Ford was required to file the
certificates of origin within one year of importation. But
Ford did not file the certificate of origin until November 5,
1998, beyond the one-year filing deadline. Ford was also
unable to secure the port director’s written waiver for the
certificates under 19 C.F.R. § 181.22(d)(1)(i). Customs
denied Ford’s claim, stating that the “Certificate of Origin
was not furnished within one year of the date of importa-
tion.” J.A. 224. Ford filed a protest to contest the denial,
and Customs denied the protest on the same grounds.
    In Ford IV, Ford contended that Customs had an af-
firmative obligation under its own regulation to accept
Ford’s untimely filing of the certificates. We rejected that
argument. Ford IV, 715 F.3d at 915. Ford’s only remain-
ing contention was that Customs’ refusal to grant Ford a
waiver for the certificates was arbitrary and capricious
based on Customs’ waiver of the filing requirement in a
separate reconciliation program. Ford argued that its
traditional refund claims, although not processed through
the reconciliation program, should nevertheless enjoy the
same waiver benefit available through that program. Id.
Previously, the Trade Court did not explore Customs’
authority and reasoning for waiving the certificate filing
requirement under the reconciliation program because
Ford’s claims at issue were not processed through that
program. Id. We remanded to the Trade Court to conduct
this limited inquiry. Id. at 917.
     On remand, Customs explained that the reconciliation
program, authorized by 19 U.S.C. § 1484(b), is a proce-
dural means for processing import entries. Ford Motor
Co. v. United States, 978 F. Supp. 2d 1350, 1353–54 (Ct.
Int’l Trade 2014) (“Ford V”). Among the features of the
reconciliation program is an ability to claim the substan-
tive duty refund benefit under § 1520(d). Id. Customs
explained that the reconciliation program has “a set of
4                                FORD MOTOR COMPANY   v. US



statutory safeguards that permit Customs to remedy
mistakes and misconduct in awarding duty free treatment
under NAFTA.” Id. at 1356–57. Many of the reconcilia-
tion program’s statutory safeguards are not available in
the traditional post-entry duty refund process. Id. at
1356. The Trade Court noted that the reconciliation
program provides Customs an added level of confidence in
the legitimacy of the importer’s claims. See id. at 1358
(“The record keeping requirements and auditing proce-
dures give Customs well-defined procedures for ensuring
the correctness of entries made through the fully auto-
mated Reconciliation Program.”). Under Chevron U.S.A.
Inc. v. Natural Resources Defense Council, Inc., 467 U.S.
837 (1984), the Trade Court concluded that Customs’
interpretation of the statutory scheme entrusted to its
administration was reasonable. Ford V, 978 F. Supp. 2d
at 1352, 1359.
                       DISCUSSION
    We review legal conclusions from Customs and the
Trade Court de novo, Universal Electronics Inc. v. United
States, 112 F.3d 488, 493 (Fed. Cir. 1997), subject to any
deference owed to Customs’ statutory interpretations,
Princess Cruises, Inc. v. United States, 201 F.3d 1352,
1357 (Fed. Cir. 2000). We similarly review law of the case
de novo. See Laitram Corp. v NEC Corp., 115 F.3d 947,
950 (Fed. Cir. 1997).
     When Congress has “explicitly left a gap for an agency
to fill, there is an express delegation of authority to the
agency to elucidate a specific provision of the statute by
regulation, and any ensuing regulation is binding in the
courts unless procedurally defective, arbitrary or capri-
cious in substance, or manifestly contrary to the statute.”
United States v. Mead Corp., 533 U.S. 218, 227 (2001)
(citing Chevron, 467 U.S. at 843–44). “If a statute is
ambiguous, and if the implementing agency’s construction
is reasonable, Chevron requires a federal court to accept
FORD MOTOR COMPANY    v. US                                5



the agency’s construction of the statute, even if the agen-
cy’s reading differs from what the court believes is the
best statutory interpretation.” Nat’l Cable & Telecomms.
Ass’n v. Brand X Internet Servs., 545 U.S. 967, 980 (2005)
(citing Chevron, 467 U.S. at 843–44).
    On appeal, Ford contends that Customs’ remand ex-
planation violates the law of the case and that it is not
reasonable. We address each contention in turn.
                    A. Law of the Case
    Ford argues that this court held in the prior appeals
of this case that a single statute, 19 U.S.C. § 1520(d),
codifies NAFTA’s post-entry duty refund claims process.
Ford therefore insists that Customs’ remand explanation
implicating a different statute violates the law of the case.
We disagree.
     In our prior decisions, we merely explained that
§ 1520(d) implements the post-entry duty refund allowed
by a particular NAFTA article. See Ford Motor Co. v.
United States, 635 F.3d 550, 552 (Fed. Cir. 2011) (“Ford
II”). We did not, however, state that it was the only
statutory provision that implements the duty refund
process. “The law of the case doctrine is limited to issues
that were actually decided, either explicitly or by neces-
sary implication, in the earlier litigation.” See Toro Co. v.
White Consol. Indus., Inc., 383 F.3d 1326, 1335 (Fed. Cir.
2004). Because our prior decisions did not decide that
NAFTA’s post-entry duty refund claims process is exclu-
sively governed by § 1520(d), Ford’s contention based on
the law of the case is incorrect.
  B. Reasonableness of Customs’ Remand Explanation
    Ford argues that the Trade Court erred in both afford-
ing Chevron deference to Customs’ remand explanation
and in finding the explanation reasonable. We disagree
on both counts.
6                                 FORD MOTOR COMPANY     v. US



    1. Trade Court Correctly Applied Chevron Deference
     Ford argues that Customs’ remand explanation “con-
flict[s] with the law of the case, Customs’ published
interpretation of the Reconciliation Program, the relevant
statutes, and the NAFTA treaty itself.” Appellant’s Br.
16. Ford relies on Bowen v. Georgetown University Hospi-
tal, 488 U.S. 204, 212 (1988), for the proposition that
there is no deference “to agency litigating positions that
are wholly unsupported by regulations, rulings, or admin-
istrative practice.” Appellant’s Br. 17. Ford therefore
concludes that “no deference is owed to Customs’ incorrect
interpretation of the NAFTA, § 1520(d), and the Reconcil-
iation Program.” Id. at 17.
     The premise for all of Ford’s alleged “conflicts” is that
§ 1520(d) is the exclusive authority for NAFTA’s post-
entry duty refund claims process and that a variety of
legal and regulatory authorities have repeatedly said so.
See id. at 29–30 (“NAFTA post-entry refund claims sub-
mitted through the Reconciliation Program are subject to
all requirements of § 1520(d)—including its one-year
filing deadline. . . . In sum, in nearly every published
reference to NAFTA reconciliation, Customs includes a
citation to § 1520(d).”). But Ford’s contentions are based
on a misreading of those legal and regulatory authorities.
    It is true that those authorities mention § 1520(d) in
discussing the reconciliation program’s feature for claim-
ing post-entry duty refunds. But those authorities do not
state that § 1520(d) exclusively governs the procedure for
claiming refunds through the reconciliation program,
including the ability to obtain a waiver of certificates of
origin. Rather, § 1520(d) explicitly delegates authority to
Customs to prescribe regulations to govern the refund
claims process. 19 U.S.C. § 1520(d). Customs exercised
that authority by promulgating 19 C.F.R. § 181.22 to
govern the traditionally filed duty refund claims process.
Similarly, Customs was duly authorized by 19 U.S.C.
FORD MOTOR COMPANY    v. US                                7



§ 1484(b) to implement the reconciliation program, a
procedural means for processing import entries. Customs
has interpreted the various statutes as creating two
separate frameworks: one governs Customs’ waiver
authority with respect to traditionally filed claims, and
the other prescribes the particular process of waiver with
respect to reconciliation-based claims. That interpreta-
tion is not inconsistent with relevant statutes, regula-
tions, or administrative practices.
     The dissent disagrees and concludes that “Chevron
deference does not apply to Customs’ remand explana-
tion.” Dissent at 11. It argues that Customs’ present
reliance on § 1484(b) during judicial review is contrary to
its focus on § 1520(d) during the administrative process.
Id. (emphasizing Customs’ notice in the Federal Register
that reconciliation is a “vehicle by which refunds and
certificate of origin waivers are granted under § 1520(d)”);
id. at 13 (“‘Congress has delegated to the administrative
official and not to appellate counsel the responsibility for
elaborating and enforcing statutory commands.’” (quoting
Bowen, 488 U.S. at 213)). Accordingly, the dissent dis-
misses Customs’ explanation as merely a “convenient
litigation position” not entitled to Chevron deference. Id.
(internal quotation marks omitted).
    The dissent’s fault-finding is misplaced. In Bowen,
the agency’s litigation position was contrary to the agen-
cy’s past implementation of the particular statutory
provision governing the disputed claims. 488 U.S. at 212–
13; see also id. at 209, 211. The context here is far differ-
ent. First, Ford’s import entries at issue were not pro-
cessed through the reconciliation program. See Ford IV,
715 F.3d at 915 (“It is undisputed that Ford’s request for
a refund of duties paid on the Entry was not made
through the reconciliation program.”). Indeed, the contro-
versy over the reconciliation program was initially deter-
mined by the Trade Court to be irrelevant. Id. at 912
(noting that the Trade Court dismissed Ford’s reconcilia-
8                                FORD MOTOR COMPANY   v. US



tion program argument in a footnote, 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” (alteration in
original) (internal quotation marks omitted)). Customs
thus had no reason to address the argument that it was
treating traditionally filed claims differently from those
made under the reconciliation program until we specifi-
cally remanded to the Trade Court to make that determi-
nation in Ford IV. Id. at 916 (noting that, given the
procedural history of the case, “it is not surprising that
the record provides no explanation for Customs’ divergent
approaches to exercising its § 1520(d) waiver power” and
remanding to the Trade Court to consider whether “there
is a reasonable explanation for treating traditional
§ 1520(d) claims differently than § 1520(d) claims made
under the reconciliation program”). Because the reconcil-
iation program was not previously material to the admin-
istrative adjudication of Ford’s claims, Customs’ remand
explanation regarding § 1484(b) is not merely a “litigation
position.”
    Second, there is no allegation that Customs had ex-
tended the reconciliation program’s certificate filing
waiver to other traditional tariff refund claims but re-
fused to do the same for Ford’s traditional refund claims
at issue. The dissent’s and Ford’s reliance on Bowen is
therefore misplaced and the Trade Court was correct to
apply Chevron deference in reviewing Customs’ remand
explanation.
     2. Customs’ Remand Explanation is Reasonable
    Customs justifies the reconciliation program’s certifi-
cate filing waiver based on numerous procedural safe-
guards not available in the traditional claims process.
Ford V, 978 F. Supp. 2d at 1356–57. Indeed, it is undis-
puted that the reconciliation program has additional
safeguards, such as the requirement for importers to post
FORD MOTOR COMPANY   v. US                              9



a continuous bond. That alone is a reasonable explana-
tion for the difference in treatment between traditional
claims and reconciliation-based claims.
    The dissent dismisses that explanation by citing the
availability of other enforcement tools common to both
processes. The fact that both processes have some of the
same safeguards does not, however, negate the added
protection that the additional safeguards provide under
the reconciliation program. And, as stated above, there is
no dispute that the reconciliation program’s requirement
of a continuous bond provides an additional protection for
Customs against improper tariff refund claims.
     We are satisfied with Customs’ explanation that the
differences between the reconciliation program and the
traditional post-entry duty refund process warrant differ-
ent filing requirements. We therefore agree with the
Trade Court that Customs’ remand explanation is reason-
able. Having satisfied our mandate in Ford IV, our
inquiry goes no further.
                      CONCLUSION
    Customs’ remand explanation provides a reasonable
explanation for the different filing requirements in the
traditional post-entry duty refund process and in claiming
duty refund through the reconciliation program.
                      AFFIRMED
  United States Court of Appeals
      for the Federal Circuit
                 ______________________

              FORD MOTOR COMPANY,
                 Plaintiff-Appellant

                            v.

                   UNITED STATES,
                   Defendant-Appellee
                 ______________________

                       2014-1581
                 ______________________

   Appeal from the United States Court of International
Trade in No. 1:03-cv-00115-JMB, Senior Judge Judith M.
Barzilay.
                 ______________________

REYNA, Circuit Judge, dissenting.
    I find no principled explanation for Customs’ decision
in this case to treat duty refund claims under NAFTA
differently depending on whether those claims were filed
traditionally or through an electronic process known as
“reconciliation.” I dissent.
                      BACKGROUND
    The fundamental purpose of NAFTA is to provide
preferential trade treatment to goods and services that
originate within the NAFTA region. Central to NAFTA’s
purpose is the “certificate of origin.” The certificate of
origin is a document certifying that goods originate in the
NAFTA region and hence qualify for preferential tariff
2                                FORD MOTOR COMPANY   v. US



treatment. North American Free Trade Agreement, Can.-
Mex.-U.S., art. 501(1), Dec. 17, 1992, 32 I.L.M. 289, 358
(1993). An importer may claim preferential tariff treat-
ment at importation or may later claim a refund under 19
U.S.C. § 1520(d) for excess duties paid at entry. Id. arts.
502(1), 502(3), 32 I.L.M. at 358 (implemented by
§ 1520(d)). Either claim requires a valid certificate of
origin, unless the importation does not exceed a certain
value, id. art. 503(a), (b), 35 I.L.M. at 358–59, or the
importing country has “waived the requirement for a
Certificate of Origin,” id. art. 503(c), 35 I.L.M. at 359.
Customs waives the certificate of origin for § 1520(d)
refund claims in two contexts.
    First, for “traditional” refund claims, Customs follows
19 C.F.R. § 181.22. Section 181.22(d) reflects the NAFTA
certificate of origin exceptions set out in NAFTA Article
503 with some variation. The regulation provides that a
certificate of origin is not required for non-commercial
importation of goods, id. § 181.22(d)(1)(ii), commercial
importation of goods whose value does not exceed $2,500
(provided an interested party certifies the goods as origi-
nating goods or Customs waives this requirement), id.
§ 181.22(d)(iii), and importation of goods for which Cus-
toms has waived the certificate of origin requirement, id.
§ 181.22(d)(1)(i). Customs waives “possession” of the
certificate of origin under § 181.22(d)(1)(i) on a case-by-
case basis.
    Second, for refund claims filed electronically through
the Automated Commercial System (ACS) Reconciliation
Prototype, Customs published a notice in the Federal
Register indicating that Customs would waive “presenta-
tion” of the certificate of origin for any importer who
participates in the reconciliation program, “but the filer
must retain [the certificate], which shall be provided to
Customs upon request.”        Revised National Customs
Automation Program Test Regarding Reconciliation, 63
Fed. Reg. 6257, 6259 (Feb. 6, 1998) (replacing notice
FORD MOTOR COMPANY    v. US                                 3



published Feb. 6, 1997). This dispute arises from Cus-
toms’ decision to waive the requirement for Ford to pre-
sent certificates of origin for refund claims filed through
reconciliation but not to waive the requirement for similar
claims filed traditionally.
                    A. Factual History
    Upon NAFTA’s entry into effect, certificates of origin
created difficulty for the respective Customs authorities of
the contracting Parties, particularly in the automotive
sector. Ford struggled to generate certificates in time to
claim preferential tariff treatment at entry. In brief, the
large number of suppliers and significantly large number
of parts and components sourced around the world made
it difficult for importers to acquire certificates, especially
within NAFTA’s timeframes. As a result, Ford paid
duties on originating goods at entry and filed traditional
§ 1520(d) refund claims when the certificates of origin for
those entries became available. Due to increased NAFTA
trade, Customs had difficulty processing the high volume
of claims, and the lack of a paperless process for submit-
ting certificates compounded the problem.
     Reconciliation was designed to alleviate growing com-
plexities in processing international trade, including
problems associated with traditional § 1520(d) refund
claims. Reconciliation allows importers to file entry
summaries using the best available information and
electronically “flag” indeterminable information, with the
understanding that the importer will provide Customs the
information at a later date. J.A. 45 (ACS Reconciliation
Prototype: A Guide to Compliance (Sept. 2004)). When
information becomes available, the importer files a new
entry providing Customs with the information necessary
to correct the original entry summary and adjust duties
owed by the importer. Ford and other importers worked
with Customs to develop Reconciliation in the years
following NAFTA’s effective date. Reconciliation took
4                                 FORD MOTOR COMPANY    v. US



effect on October 1, 1998, and Customs extended the
program indefinitely beginning October 1, 2000.
     Before reconciliation was fully operational, Ford
worked with local ports of entry to develop interim recon-
ciliation for processing electronically submitted § 1520(d)
refund claims. As Customs acknowledged during devel-
opment of reconciliation, these “local, informal versions of
‘reconciliation’ were problematic because they varied a
great deal from place to place.” J.A. 43. Ford neverthe-
less found success with interim reconciliation at several
ports of entry. Some ports of entry allowed Ford to elec-
tronically file § 1520(d) refund claims without certificates
of origin, given that Customs could not yet accommodate
electronically filed certificates, even for claims that were
otherwise filed electronically.
     While Ford succeeded with interim reconciliation at
some ports of entry, Ford met resistance at the Detroit
port of entry. Anticipating difficulty with electronically
filing certificates of origin, Ford wrote a letter dated July
16, 1996, to the (Customs) Detroit Port Director request-
ing permission to submit CD-ROM disks including certif-
icate of origin data associated with electronically filed
§ 1520(d) refund claims. The Detroit Port Director took
Ford’s request under advisement but did not formally
respond until April 10, 1998.
    In the interim, Ford imported automobile parts from
Canada into the United States through the Port of Detroit
as usual. Because Ford did not yet have certificates of
origin, Ford did not claim preferential tariff treatment at
the time of importation and instead paid non-preferential
duties as prescribed by the applicable provisions of the
Harmonized Tariff Schedule of the United States. Ford
later submitted more than 600 refund claims under
§ 1520(d) through the Electronic Protest Module of Cus-
toms’ Automated Commercial System (“ACS”). Because
the Customs protest module could not accept paper docu-
FORD MOTOR COMPANY    v. US                                5



ments such as copies of certificates of origin, Ford submit-
ted refund claims without certificates, in accordance with
interim reconciliation processes Ford had developed at
other ports.
    After Ford had submitted hundreds of § 1520(d)
claims without certificates, the Detroit Port Director
responded to Ford’s request to provide certificates of
origin on CD-ROM disks, which by now was close to two
years old, through two letters dated April 10, 1998. In
one letter, the Port Director permitted Ford to file
§ 1520(d) claims on a CD-ROM disk, yet required Ford to
“supply the paper documentation required by the regula-
tions.” J.A. 162. In another letter, the Port Director
acknowledged “some confusion” surrounding Ford’s
§ 1520(d) claims filed without certificates of origin and
requested the missing certificates within 60 days. Id. at
163.
    In response to the Port Director’s request, Ford at-
tempted to work with the Port of Detroit to find an effi-
cient process for submitting the certificates of origin.
Ford proposed electronically filing the certificates, but the
Port of Detroit rejected the proposal, stating that “no
electronic format for receiving [certificates of origin] has
been approved.” J.A. 172. On June 12, 1998, Customs
Headquarters informed Ford that its request to electroni-
cally file the missing certificates had been officially de-
nied.
    Negotiations having failed, Ford complied with the
Port Director’s request by submitting hard copies of the
certificates during the period of August 11, 1998, to
December 4, 1998. Despite Ford’s submissions, on June 4,
1999, the Port of Detroit informed Ford that its § 1520(d)
refund claims were being denied because, while the
§ 1520(d) claims were timely filed within one year of
importation, the certificates of origin were not, and thus
the claims were untimely.
6                                FORD MOTOR COMPANY   v. US



    Though hundreds of Ford’s § 1520(d) claims were af-
fected, the parties agree to use a single representative
entry. 1 The representative automobile parts entered the
United States from Canada on June 27, 1997. As with
other entries, Ford did not claim preferential treatment at
importation but instead filed a § 1520(d) refund claim
(without certificates of origin) on May 13, 1998, less than
one year after the date of importation. Ford submitted
the certificates on November 5, 1998, over a year after
importation. Customs denied Ford’s claim, stating that
the “Certificate of Origin was not furnished within one
year of the date of importation.” J.A. 224. Ford filed a
protest to contest the denial, and Customs denied the
protest on the same grounds.
    At around the time Ford sought review by Customs of
the representative entry, Ford had pending protests of
denied § 1520(d) claims filed through reconciliation.
Customs ruled in Ford’s favor on each of these protests,
reasoning that “there is no apparent dispute that the
importations at issue met the substantive criteria for
eligibility for NAFTA preference.” J.A. 226. Customs
acknowledged “the fact that Customs liquidated certain
claims with preference under these same facts creates the
risk that Ford’s claim of treatment [in this case] might be
accepted by a court.” Id. For the representative entry,
however, Customs did not waive the one-year certificate of
origin requirement, as it had done for contemporaneous
reconciliation claims.
                  B. Procedural History
    Ford sought review of Customs’ decision to deny its
refund claim for the representative entry in the Trade
Court. Ford Motor Co. v. United States, 32 I.T.R.D. 1103
(Ct. Int’l Trade 2010), available at 2010 WL 98699. The



    1   Entry No. 231-2787386-9.
FORD MOTOR COMPANY    v. US                                 7



Trade Court dismissed Ford’s complaint for lack of subject
matter jurisdiction, reasoning that a certificate of origin is
an element of a § 1520(d) refund claim that must be filed
within one year of importation. Id. at *2 (citation omit-
ted). The Trade Court explained that by not filing the
certificate of origin within one year of importation, Ford
had not met § 1520(d)’s requirements. Id. Customs in
turn had not reached a “decision” on Ford’s protest suffi-
cient for Trade Court jurisdiction under 28 U.S.C.
§ 1581(a), because a “decision” under § 1581(a) requires “a
claim filed in accordance with law.” Id.
     This court reversed. Ford II, 635 F.3d at 558. The
court explained that § 1520(d) is not a jurisdiction-
granting provision because Congress “has not clearly
labeled § 1520(d)’s timely certificate filing requirement as
‘jurisdictional.’” Id. at 557. “[S]o 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 formali-
ties . . . will not deprive the Trade Court of jurisdiction to
hear the case.” Id. The court predicated its holding on
Customs’ authority under § 1520(d) to waive the certifi-
cate of origin, noting that while § 1520(d) does not ex-
pressly mention certificate of origin waiver, “it is obvious
that § 1520(d) was designed in part to permit the imple-
mentation of [NAFTA] Article 503(c)’s waiver authority.”
Id. at 555.
    On remand, the Trade Court upheld the merits of
Customs’ decision, reasoning that § 1520(d) and imple-
menting regulations “require importers to file within one
year of importation copies of applicable certificates of
origin.” Ford Motor Co. v. United States, 800 F. Supp. 2d
1349, 1352 (Ct. Int’l Trade 2011). Ford argued that
Customs improperly treated traditional claims filed under
§ 1520(d) differently than claims filed through reconcilia-
tion, waiving the one-year certificate of origin require-
ment for reconciliation claims but refusing to do so for
traditional § 1520(d) claims. The Trade Court dismissed
8                                 FORD MOTOR COMPANY     v. US



the argument, stating that Ford’s “entries were not sub-
ject to the [reconciliation] program and the court’s inquiry
must focus on the statutory and regulatory scheme which
governed [Ford’s] entries.” Id. at 1352–53 n.5.
    This court vacated the Trade Court’s decision. Ford
IV, 715 F.3d at 917. The court held that Customs may
deny a § 1520(d) claim if certificates of origin have not
been filed within one year of importation, “and the re-
quirement to file them has not been waived.” Id. at 913.
In contrast to the Trade Court’s reasoning, however, the
court found reconciliation relevant to Customs’ denial of
Ford’s claims because “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 [certificates of origin] within one year.”
Id. at 915. Accordingly, the Ford IV court remanded this
case to the Trade Court to determine “whether there is a
reasonable explanation for treating traditional § 1520(d)
claims differently than § 1520(d) claims made under the
reconciliation program.” Id. at 917. On remand, the
Trade Court ordered Customs to explain why it treated
Ford’s § 1520(d) claims differently depending on the
manner in which Ford filed the claim. Customs explained
that this court’s inquiry “appears to be based upon the
incorrect assumption that Customs’ authority to waive
presentation of the [certificate of origin] . . . stems solely
from the NAFTA and 19 U.S.C. § 1520(d).” J.A. 302
(Remand Report). Customs argued that it had authority
to waive the certificate of origin under a “wholly different
set of statutes, namely, 19 U.S.C. §§ 1401(s), 1484, 1508,
and 1509, which govern the reconciliation process.” Id.
Customs thus contended that its inconsistent treatment of
Ford’s refund claims “is not the result of two different
interpretations of § 1520(d).” Id. Customs explained
further that it was justified in granting blanket certificate
of origin waivers for reconciliation claims and not doing
the same for traditional refund claims because the recon-
FORD MOTOR COMPANY   v. US                               9



ciliation statutes, unlike § 1520(d) and associated regula-
tions, “provide strong remedies to Customs should it later
discover that the claimed goods are not entitled to NAFTA
[preference].” Id. at 307–08.
    After reviewing Customs’ explanation, the Trade
Court again upheld Customs’ decision to deny Ford’s
refund claim. Ford Motor Co. v. United States, 978 F.
Supp. 2d 1350 (Ct. Int’l Trade 2011). According to the
Trade Court, Customs’ statutory interpretation warrants
deference because Customs’ explanation involved the
“interpretation of the statutory scheme [Customs] is
entrusted to administer.” Id. at 1352 (citing Chevron
U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837
(1984)). The Trade Court found that Customs reasonably
concluded that waiver for reconciliation claims is gov-
erned by statutory safeguards that are inapplicable to
waiver for traditional § 1520(d) claims. Id. at 1357–59.
Ford timely appealed, challenging both the Trade Court’s
authority to accept Customs’ remand explanation under
law of the case and this court’s prior mandates, in addi-
tion to the merits of Customs’ explanation.
                       DISCUSSION
    This court reviews legal conclusions from Customs
and the Trade Court de novo, Universal Elecs. Inc. v.
United States, 112 F.3d 488, 493 (Fed. Cir. 1997), subject
to any deference owed to Customs’ statutory interpreta-
tions, Princess Cruises, Inc. v. United States, 201 F.3d
1352, 1357 (Fed. Cir. 2000). For the reasons explained
below, I would find that no deference is due and therefore
review the statutes de novo. See id. (“Statutory interpre-
tation by the Court of International Trade . . . is . . .
reviewed de novo.”).
    Customs’ remand explanation includes two distinct
arguments. First, Customs argues that its authority to
waive certificates of origin stems from two separate
statutory schemes. As a result, Customs stresses that it
10                                FORD MOTOR COMPANY    v. US



is not interpreting the same statute differently and thus
need not offer a reasonable explanation for treating Ford’s
claims differently. Second, Customs argues that the
process governing refund claims differs depending on
whether a refund claim is filed traditionally or through
reconciliation. Customs’ second argument is consistent
with the notion that even if waiver authority stems solely
from § 1520(d), the difference between the regulatory
process governing the two different types of refund claims
provides a reasonable explanation for Customs’ different
treatment of waiver authority granted by the same stat-
ute, § 1520(d). See Ford, 978 F. Supp. 2d at 1358–59
(“Although § 1520(d) may establish Customs’ waiver
authority in general, it does not control the actual process
of waiver with respect to reconciliation-based claims.”).
Neither argument is persuasive.
       A. Statutory Authority to Waive Certificates of
                        Origin
                       i. Deference
     The majority opinion states that “the Trade Court was
correct to apply Chevron deference in reviewing Customs’
remand explanations.” Maj. Op. at 8. A court reviewing
an agency’s interpretation of a statute it is entrusted to
administer applies Chevron deference if the “agency
interpretation claiming deference was promulgated in the
exercise of [Congressionally delegated] authority.” United
States v. Mead Corp., 533 U.S. 218, 227 (2001). An agen-
cy may exercise Congressionally delegated authority
through adjudication, notice-and-comment rulemaking, or
through some other “legislative type of activity” indicative
of “comparable congressional intent.” Id. at 227, 232.
    Ford argues that no deference is due because Cus-
toms’ remand explanation is “far removed not only from
[the] notice-and-comment process, but from any other
circumstances reasonably suggesting that Congress ever
thought of . . . deserving [ ] deference.” Appellant’s Br. at
FORD MOTOR COMPANY    v. US                               11



16 (quoting Mead, 533 U.S. at 231). Customs repeats the
Trade Court’s rationale that Customs’ interpretation is
reasonable under Chevron. Yet Customs fails to explain
why its remand explanation should be afforded Chevron
deference at all.
    I would find that Chevron deference does not apply to
Customs’ remand explanation. Customs does not identify
any instance in which it officially interpreted its authority
to waive certificates of origin for refund claims as stem-
ming from reconciliation statutes. To the contrary, Cus-
toms’ publications suggest that reconciliation is a vehicle
by which refunds and certificate of origin waivers are
granted under § 1520(d). See, e.g., Modification of Na-
tional Customs Automation Program Test Regarding
Reconciliation, 62 Fed. Reg. 51,181, 51,182 (Sept. 30,
1997) (characterizing reconciliation as a “vehicle to file
post-importation refunds claims under 19 U.S.C.
§ 1520(d)”) (emphases added). See also, e.g., Modification
and Clarification of Procedures of the National Customs
Automation Program Test Regarding Reconciliation, 67
Fed. Reg. 61,200, 61,201 (Sept. 27, 2002) (“There are two
ways to make a 1520(d) NAFTA claim: One way is to file
[a traditional 1520(d) claim] and the other is to make a
1520(d) claim in accordance with the Reconciliation
process.”).
    The Trade Court agreed that Customs’ sources con-
sistently cite § 1520(d) as authority for issuing refunds
through reconciliation. Ford, 978 F. Supp. 2d at 1358
(“The court notes that Customs has not always provided
importers the clearest guidance on this issue and has
referenced § 1520(d) when discussing the Reconciliation
Program, which implies that ‘waiver’ is the same whether
the claim was made through reconciliation or not.”).
Customs points to no regulations, letters, or documents
supporting its current interpretation. Customs’ remand
explanation thus finds no basis in any source that would
ordinarily demand Chevron deference.
12                                FORD MOTOR COMPANY    v. US



    Customs argued in its brief to this court prior to this
court’s most recent remand that the reconciliation pro-
gram was consistent with waiver authority under
§ 1520(d). In its brief, Customs explained that “Customs
expressly waived the timely submission of the Certificate
of Origin requirement of § 1520(d) with regard to all
claims submitted pursuant to Customs’ Reconciliation
Program.” Appellee’s Br. at 10. Customs explained that
reconciliation program certificate waiver arose under
§ 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.”
Ford IV, 715 F.3d at 916.
    At oral argument, Customs still indicated that its
ability to waive the certificate of origin filing requirement
under reconciliation was pursuant to NAFTA section 503,
therefore arising under § 181.22(d)(1)(i). Oral Argument
at 17:49, available at http://oralarguments.cafc. uscourts.
gov/default.aspx?fl=2012-1186.mp3. Customs argued that
the application process governing reconciliation justified
treating the two types of refund claims differently. Ford
IV, 715 F.3d at 916.
    Customs’ interpretation morphed on remand. In its
brief in the current appeal, Customs argues that its
remand report “justifies the different treatment given to
certificate of origin waivers under traditional section
1520(d) claims and to section 1520(d) claims made
through the Reconciliation Program.” Appellee’s Br. at
29.
    The majority opinion finds that Customs exercised its
authority to prescribe regulations to govern traditional 19
U.S.C. § 1520(d) claims by promulgating 19 C.F.R.
§ 181.22, and that “Customs was duly authorized by 19
U.S.C. § 1484(b) to implement the reconciliation pro-
gram.” Maj. Op. at 6–7. It explains that “Customs has
interpreted the various statutes as creating two separate
FORD MOTOR COMPANY    v. US                               13



frameworks: one governs Customs’ waiver authority with
respect to traditionally-filed claims, and the other pre-
scribes the particular process of waiver with respect to
reconciliation-based claims.” While this may be Custom’s
current interpretation, I would not accord this interpreta-
tion deference, as there is no indication that Customs
interpreted the statutes this way in the past.
    It appears that Customs’ current interpretation of the
basis for waiver in reconciliation—as arising not under
§ 1520(d) and 19 C.F.R. § 181.22(d)(1)(i) but instead under
other statutes discussing reconciliation generally—was
crafted for the purpose of this litigation. As a mere “con-
venient litigation position,” Customs’ interpretation is not
entitled to Chevron deference. See Bowen v. Georgetown
Univ. Hosp., 488 U.S. 204, 213 (1988). “Congress has
delegated to the administrative official and not to appel-
late counsel the responsibility for elaborating and enforc-
ing statutory commands.” Id. (quoting Inv. Co. Inst. v.
Camp, 401 U.S. 617, 628 (1971)). I therefore would
review the statutes without Chevron deference to Cus-
toms’ interpretation.
    Even if not entitled to Chevron deference, a statutory
interpretation by Customs is ordinarily entitled to defer-
ence proportional to the “‘thoroughness evident in its
consideration, the validity of its reasoning, its consistency
with earlier and later pronouncements, and all those
factors which give it power to persuade.’” See Mead, 533
U.S. at 228 (quoting Skidmore v. Swift & Co., 323 U.S.
134, 140 (1944)); Deckers Corp. v. United States, 752 F.3d
949, 954 (Fed. Cir. 2014). An interpretation that a court
finds unpersuasive, however, as I find Customs’ interpre-
tation, is not entitled to deference, particularly when the
interpretation emerges during litigation with no oppor-
tunity for public comment. See Christopher v. SmithKline
Beecham Corp., 132 S. Ct. 2156, 2169–70 (2012). Accord-
ingly, I would employ traditional tools of statutory inter-
pretation to determine whether Customs has independent
14                                FORD MOTOR COMPANY    v. US



authority under reconciliation statutes to waive certifi-
cates of origin.
     ii. Source of Certificate of Origin Waiver Authority
    NAFTA Article 501(1) requires NAFTA governments
to establish “a Certificate of Origin for the purpose of
certifying that a good being exported from the territory of
a Party into the territory of another Party qualifies as an
originating good.” NAFTA art. 501(1), 32 I.L.M. at 358.
Article 502 defines certificate of origin requirements for
claiming preferential tariff treatment at the time of
importation or later through a refund claim. An importer
claiming preferential tariff treatment at the time of
importation must “make a written declaration, based on a
valid Certificate of Origin, that the good qualifies as an
originating good,” and “have the certificate in its posses-
sion at the time the declaration is made.” Id. art. 502(1),
32 I.L.M. at 358. Similarly, an importer applying for a
refund of excess duties paid must present both “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. art. 502(3), 32 I.L.M. at 358.
    NAFTA Article 503 is a provision establishing specific
exceptions to the certificate of origin requirement. See id.
art. 503, 32 I.L.M. at 358–59. Article 503 states that a
“Certificate of Origin shall not be required” in three
circumstances. Id. at 358. The first two exceptions apply
to the importation of goods whose value does not exceed
U.S. $1,000 or the equivalent. Id. art. 503(a), (b), 32
I.L.M. at 358–359. The third exception applies to the
importation of goods into the territory of a party that has
waived the certificate of origin requirement. Id. art.
503(c), 32 I.L.M at 359. Article 503’s exceptions apply to
both preferential tariff claims at importation and refund
claims because, as a specific provision, Article 503 is an
exception to Article 502’s general requirements. See, e.g.,
Morton v. Mancari, 417 U.S. 535, 550–51 (1974) (“Where
FORD MOTOR COMPANY   v. US                               15



there is no clear intention otherwise, a specific statute
will not be controlled or nullified by a general one.”)
(citations omitted); see also Medellin v. Texas, 552 U.S.
491, 506 (2008) (“The interpretation of a treaty, like the
interpretation of a statute, begins with its text.”).
     As this court explained in Ford II, by implementing
NAFTA Article 502’s refund provision, § 1520(d) also
implemented Article 503’s certificate of origin exceptions.
Ford II, 635 F.3d at 555 (“While § 1520(d) does not specif-
ically 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.”). Like Article 502(3),
§ 1520(d) requires an importer to submit a copy of a
certificate of origin. While no domestic statutory provi-
sion parallels NAFTA Article 503 precisely, NAFTA’s
Statement of Administrative Action, 19 U.S.C. § 3311,
injects Article 503’s exceptions into § 1520(d) for the
purpose of refund claims. Id. at 555, n.2; Bestfoods v.
United States, 165 F.3d 1371, 1374 (Fed. Cir. 1999) (“With
[the NAFTA Implementation Act], Congress approved
NAFTA, as well as a ‘statement of administrative action’
that was submitted with the legislation.”); Medellin, 552
U.S. at 504–05 (explaining that a treaty is domestic law
either when self-executing or when implemented by
Congress).      In sum, § 1520(d) implements NAFTA’s
certificate of origin waiver authority as negotiated by the
NAFTA Parties. Absent § 1520(d)’s implementing provi-
sions, the United States could not waive certificate of
origin requirements for NAFTA-traded goods.
    In contrast to § 1520(d), the statutory provisions gov-
erning reconciliation were not subject to NAFTA negotia-
tions and not part of NAFTA’s implementing legislation.
The reconciliation provisions do not address NAFTA
refund claims specifically. See 19 U.S.C. §§ 1401(s),
1484(b). Sections 1401(s) and 1484(b) define and regulate
the electronic reconciliation process. That process did not
16                                 FORD MOTOR COMPANY     v. US



exist at the time NAFTA entered into effect. It is true
that the reconciliation statutes’ language relates to im-
ports generally. Yet such general language cannot be
construed to independently authorize § 1520(d) refund
claims or certificate of origin waivers associated with
those refund claims because those matters are “dealt with
in another part of the same enactment,” § 1520(d). See
RadLAX Gateway Hotel, LLC v. Amalgamated Bank, 132
S. Ct. 2065, 2071 (2012) (quoting D. Ginsberg & Sons v.
Popkin, 285 U.S. 204, 208 (1932)). I would hold that the
reconciliation statutes do not independently implement
Article 503’s certificate of origin exceptions for § 1520(d)
refund claims.
           B. Customs’ Procedural Explanation
    Customs’ second argument in its remand explanation
relates to procedural differences between traditional and
reconciliation-based § 1520(d) claims. Customs argues
that such procedural differences justify its inconsistent
treatment of Ford’s claims, even if authority to waive
certificates of origin stems exclusively from § 1520(d).
Customs explains that, by virtue of being an “entry”
under § 1401(s), reconciliation claims are safeguarded by
statutory recordkeeping and bond requirements, whereas
traditional § 1520(d) claims are not. Appellee’s Br. at 20–
23 (citing §§ 1401(a), 1484, 1508, and 1059). I disagree.
    NAFTA recordkeeping requirements apply regardless
of the manner in which a § 1520(d) refund claim is filed.
Section 1508(a) requires interested parties to “make,
keep, and render for examination and inspection” all
documents pertaining to importation. Even a refund
claim that is not classified as an “entry” is governed by
§ 1508(a)’s recordkeeping requirements because all refund
claims require “a written declaration that the good quali-
fied [as an originating good] at the time of importation.”
§ 1520(d)(1). Section 1508(a)(3) applies to “activities
[that] require the filing of a declaration, or entry, or both.”
FORD MOTOR COMPANY    v. US                                17



(emphasis added). Section 1509’s inspection, examina-
tion, and audit procedures apply not only for the “purpose
of ascertaining the correctness of any entry,” but also “for
determining the liability of any person for . . . duties, fees
and taxes which may be due.” See § 1509(a). Both tradi-
tional and reconciliation-based § 1520(d) claims require
Customs to determine liability for duties.
    Customs further argues that a bond is required for an
“entry,” whereas a bond is not required for a traditional
§ 1520(d) refund claim. Whether a bond is required for an
“entry,” however, while not being required for a tradition-
al § 1520(d) claim, is of little consequence. Unlike claims
arising from reconciliation, traditional § 1520(d) refund
claims do not rely on indeterminable information flagged
at the time of importation. Rather, the entry is liquidated
at importation as if no preferential treatment claim is
being made. See § 1509(d). The importer thus pays all
applicable liquidated duties and fees due at the time of
importation, see J.A. 34, giving Customs an effective bond
to guard against incorrect § 1520(d) refund claims. If
Customs determines a § 1520(d) claim to be incorrect,
Customs simply denies all or part of the refund and
retains the duties paid at entry. Customs contends that it
also needs a bond to guard against mistakes discovered
after reliquidation, i.e., mistakes made after Customs has
processed a § 1520(d) refund claim. If the importer is
responsible for such mistakes, however, Customs has
remedies available under § 1592. If Customs finds fraud
or negligence, it has authority to administer severe penal-
ties unless the NAFTA importer who discovers the incor-
rect claim “voluntarily and promptly makes a corrected
declaration and pays any duties owing.” § 1592(c)(5).
Customs can therefore guard against mistakes and abuse
without a bond.
     Customs also argues that the technical manner in
which it has defined waiver justifies treating waiver
differently depending on whether an importer files a
18                                FORD MOTOR COMPANY    v. US



refund claim traditionally or through reconciliation. For
refund claims made through reconciliation, Customs
waives “[p]resentation” of the certificate of origin “but the
filer must retain this document and provide it [Customs]
upon request.” J.A. 51. Under 19 C.F.R. § 181.22(d), on
the other hand, Customs waives “possession” of the certif-
icate of origin. Customs argues that because it grants
“possession” waivers under § 181.22(d) but only “presen-
tation” waivers through reconciliation, a waiver granted
through reconciliation would not prevent Customs from
later requesting an importer’s certificate of origin if
dishonest behavior was suspected. Customs’ argument
misses the point.
     Under the circumstances of this case, Customs could
have granted Ford a “presentation” waiver for its tradi-
tional § 1520(d) claims. By the time Customs Headquar-
ters was reviewing Ford’s traditional § 1520(d) claims, it
was also reviewing denials of Ford’s claims for preferen-
tial treatment filed through reconciliation. Customs thus
had already acknowledged statutory authority to waive
“presentment” of certificates of origin, i.e., authority to
waive less than that authorized by NAFTA Article 503.
On the basis of such waiver authority, Customs granted
Ford’s claims filed through reconciliation, while denying
Ford’s traditional claims. There was no principled reason
for doing so because the same statutory safeguards ap-
plied to both sets of Ford’s claims, and Ford had submit-
ted all requisite certificates of origin, thus laying to rest
any concerns about the authenticity of Ford’s claims.
    Customs mistakenly assumes that it could not have
granted Ford a “presentation” waiver simply because
Ford’s traditional claims were not formally filed through
the reconciliation portal. Ford’s claims were filed elec-
tronically through the Electronic Protest Module of Cus-
toms’ Automated Commercial System (“ACS”). Because
the Customs protest module could not accept paper docu-
ments such as copies of certificates of origin, Ford submit-
FORD MOTOR COMPANY    v. US                               19



ted refund claims without certificates, in accordance with
interim reconciliation processes Ford had developed at
other ports, and Ford offered to submit certificates of
origin on CD-ROM. Ford’s claims thus reflected a claim
filed under reconciliation in all substantive respects. The
fact that Customs issued an informal, across-the-board
“presentation” waiver for refund claims filed through
reconciliation through notice in the Federal Register
illustrates that it could have waived presentment here,
particularly when it had no reason not to do so. “A fun-
damental norm of administrative procedure requires an
agency to treat like cases alike.” Wester Energy, Inc. v.
Fed. Energy Regulatory Comm’n, 473 F.3d 1239, 1241
(D.C. Cir. 2007); see also F.C.C. v. Fox Television Stations,
Inc., 556 U.S. 502, 549 (2009) (“an agency must act con-
sistently”).
                       CONCLUSION
    Because Customs’ remand explanation fails to identify
a reasonable basis for its inconsistency, I dissent and
would reverse and remand to the Trade Court with in-
structions to calculate and award Ford’s excess duties
paid, with interest.
