## Facts

- Nufarm imported chemical products into the United States under HTSUS subheading 9813.00.05 (temporary importation under bond), which defers duty on goods imported for repair, alteration, or processing.
- Nufarm processed the imported chemicals in the United States into herbicides and exported the herbicides to Canada.
- Upon export, Customs assessed the deferred duties under 19 C.F.R. § 181.53, a regulation implementing NAFTA Article 303 and related statutory provisions.
- Nufarm protested, arguing § 181.53 violated the Export Clause because it effectively imposed a tax or duty on exports.
- Customs denied the protest, reasoning duty liability arose at importation and the regulation only deferred payment until export.
- The Court of International Trade granted summary judgment to the government on the Export Clause claim and earlier denied Nufarm’s motion for class certification.

## Issues

1. Whether 19 C.F.R. § 181.53 violates the Export Clause, facially or as applied, by requiring payment of a duty when the processed goods are exported to a NAFTA country.
2. Whether arguments based on NAFTA Article 303 and U.S. Note 1(c) to chapter 98, subchapter XIII, HTSUS, may be considered when raised for the first time on appeal.
3. Whether denial of class certification remains reviewable after the named plaintiff loses on the merits.

## Decision

- The Federal Circuit affirmed the judgment for the United States.
- The court held that § 181.53 does not violate the Export Clause because it concerns an import duty whose collection is deferred, not a duty laid on exports.
- The court declined to consider NAFTA- and U.S. Note 1(c)-based challenges not presented to the Court of International Trade.
- The court held the class certification appeal was moot after Nufarm’s individual claim failed on the merits.

## Legal Principles

- The Export Clause prohibits taxes or duties laid on articles exported from any state, but does not bar duties that attach at importation even if payment is triggered later by export.
- An exaction is treated as an import duty when the liability arises upon entry into the United States; deferral of collection does not convert it into an export duty.
- Appellate courts generally will not consider legal theories or statutory challenges raised for the first time on appeal when the trial court had no opportunity to address them.
- When the named plaintiff’s claim is resolved against it on the merits and no live controversy remains, an appeal challenging denial of class certification may be moot.

## Conclusion

The Federal Circuit upheld Customs’ deferred-duty scheme under 19 C.F.R. § 181.53, concluding it enforces an import-duty liability incurred at entry and therefore does not impose an unconstitutional duty on exports, while also enforcing issue-preservation limits and treating the class certification dispute as moot after the plaintiff lost on the merits.


Nufarm America’s, Inc. v. United States, 521 F.3d 1366 (Fed. Cir. 2008)