Norca and Gov't Argue Over Definition of 'Backhoe' During Oral Argument

Lawyers from both Norca Engineered Products and DOJ tried to convince Court of International Trade Judge Jane Restani that their preferred definition of "backhoe" was the correct one, during June 23 oral arguments (Norca Engineered Products v. U.S., CIT # 21-00305).

The disagreement over what constitutes a "backhoe" has been at the center of the case since it began in November, with the sides not coming to agreement (see 2211030062). The Doosan Bobcat mini-excavators, for which Norca exclusively imports its counterweights, are commercially understood to be "excavators" rather than "backhoes," meaning that parts for them would be classified under the statistical reporting number 8431.49.9095, a residual category for parts of certain machinery. The government's position is that the mini-excavators are "backhoes," whose parts are classified under 10-digit tariff subheading 8431.49.9044. Both numbers are duty-free, but Norca's preferred classification would exclude the counterweights from Section 301 tariffs by adding 9903.88.14 as a secondary subheading.

Both sides seemed to be in agreement that the common industry definition advocated by Norca clashes with the dictionary definition advocated by the government. The Harmonized Tariff Schedule simply lists equipment types rather than describing their function. The common understanding of those equipment types can run counter to definitions of their character or use. Norca argued that the court should refrain from adopting a definition that is at odds with the commercial understanding, saying that could cause significant confusion for future importers.

Restani expressed frustration with both options, saying that "nobody really knows what these things are unless they are working in that industry." She asked both parties if additional testimony would be useful before ruling. Neither Norca nor the government said that more testimony would be useful.