  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. Barzi-
lay.
                 ______________________

                 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 Dear-
born, Michigan.

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

of Justice, of New York, New York, argued for defendant-
appellee. 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 post-
entry 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 proceed-
ings.


    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 ser-
vices 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 mecha-
nism 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 lat-
   er than one year after the date on which the good
   was imported, apply for a refund of any excess du-
   ties paid as the result of the good not having been
   accorded preferential tariff treatment, on presen-
   tation 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 impor-
       tation 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 regula-
    tions 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 im-
    porter, 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 impor-
       tation;
    (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 re-
       lating 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, Cus-
toms has promulgated regulations setting forth the proce-
dures 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 relat-
       ing 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 re-
fund of duties must be filed within one year of importa-
tion 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 rele-
vant 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 di-
        rector has in writing waived the requirement
        for a Certificate of Origin because the port di-
        rector is otherwise satisfied that the good quali-
        fies 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 sepa-
rate from, but coexists with, the procedures described
above for obtaining refunds under § 1520(d). Any import-
er may apply to participate in the program. The only
requirements are (1) that participants file entry summar-
ies 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 infor-
mation about the program. See ACS Reconciliation Proto-
type:    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 infor-
mation might not yet be known. According to the Guide,
   More and more transactions involve final adjust-
   ments 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 ad-
   ministrative burden of such adjustments. Howev-

   2    This program is also known as the “reconciliation
prototype.” The parties have used the terms “reconcilia-
tion prototype” and “reconciliation program” interchange-
ably. For consistency, this opinion will use the term
“reconciliation program.”
8                                       FORD MOTOR CO   v. US
    er, these local, informal versions of “reconcilia-
    tion” 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 infor-
mation 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 pro-
gram 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 reconcilia-
tion 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 fil-
ing of reconciliations. A reconciliation finalizes outstand-
ing information associated with previously flagged
entries. As in § 1520(d) and § 181.31, NAFTA reconcilia-
tions—that is, reconciliations that seek to finalize a post-
entry claim for refund under § 1520(d)—must be filed
within one year of the import date. They also must con-
tain 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 automo-
tive 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 post-
entry claims for refunds of duties paid on NAFTA-eligible
goods.
    Prior to the introduction of the reconciliation pro-
gram, 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 require-
ment 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 im-
ported 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 treat-
ment under the NAFTA. Ford electronically filed post-
entry 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 late-
filed 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 interpreta-
tions 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 originat-
ing 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 re-
quirement, 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 necessari-
ly require Customs to accept documentation after the one-
year 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 documenta-
tion and without regard to the one-year deadline, so long
as the required documents were submitted before liquida-
tion. We do not believe § 1520(d)(3) permits such a result.
     Xerox established that jurisdiction does not exist un-
less 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 con-
tains 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 dec-
ades, 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 fraud-
ulent 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 in-
struction 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 reject-
ed 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 Gulf-
stream dealt with § 10.112 in relation to other regula-
tions. Here, reading § 10.112 broadly would conflict with
the statute. This it cannot do. Section 1520(d) unambig-
uously 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 Cus-
toms 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 de-
signed to satisfy Customs that covered goods qualify for
NAFTA treatment.
    As an initial matter, we observe that Customs un-
doubtedly 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 du-
ties paid on the Entry was not made through the reconcil-
iation 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 reconcili-
ation 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 reconcilia-
tion 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 ambigu-
ous 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 deci-
sion, 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 Com-
merce to change its interpretation of the statute. Howev-
er, as a general rule, it was unreasonable for an agency to
simultaneously interpret the statute one way in investi-
gations 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 presump-
tion that the same term had the same meaning in differ-
ent statutes, Commerce was required to provide a
reasonable explanation).
    Although Ford raised the argument that Customs ap-
plies 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 exercis-
ing its § 1520(d) waiver power.
     Customs did provide some indication of its reasoning
on appeal. In its brief, Customs argued that the reconcil-
iation 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 pre-
sented within one year of the date of importation. Cus-
toms 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. Barzi-
lay.
                 ______________________

NEWMAN, Circuit Judge, dissenting.

    I agree that the statute and regulations require that
the refund claim must be filed within one year of importa-
tion. 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 support-
ing “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 docu-
    ment, 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 in-
    tent, 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 liquida-
    tion 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, alt-
hough 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 flexi-
bility 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 man-
date 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 docu-
ments 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 doc-
    uments 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 en-
    titlements; 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, ar-
guing 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 Certif-
icates of Origin were required “at time of” entry. Howev-
er, the Gulfstream court resolved any distinction between
the phrase “at time of” entry and “in connection with”
entry, concluding: “The Court finds that Customs’ inter-
pretation 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) pur-
poses. 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 enti-
tled 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], Cor-
rpro 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 docu-
ments must be submitted within § 1520(d)’s one year limit
or the Court of International Trade does not have jurisdic-
tion. 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 im-
porter 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 in-
stance for NAFTA treatment.” (emphasis added)).
    In both Aviall and Gulfstream the Court of Interna-
tional 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 “juris-
dictional requirements,” and the subsequent filing of
supporting documents for timely filed claims. Gulfstream
cites this distinction, noting “[I]t is clear that the regula-
tion [§ 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 dead-
line, 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 acknowl-
edged that this court, in Ford II, distinguished “notice of a
party’s § 1520(d) claim” from “the accompanying certifi-
cate 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 codi-
fied, 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 entire-
ly. 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 exporter-
suppliers 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. Be-
tween 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 Cus-
toms 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 guid-
ance on filing of Certificates.
    At a minimum, if Customs wishes to change its posi-
tion or remove the application of § 10.112 from NAFTA
importations, Customs should have given notice of pro-
posed 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 ac-
tions, 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.
