CIT Sends Customs Spat to Trial on Whether Truck Steps Are Side Protective Attachments
The Court of International Trade on Oct. 7 sent a customs classification dispute on truck steps to a bench trial after finding that the undisputed facts are insufficient for conducting a principal use analysis on whether the products are "side protective attachments." Judge Jennifer Choe-Groves held that while a Section 301 exclusion for "side protective attachments" is a principal use provision, and not a provision for an individual product, the court can't at this time properly assess the imports at issue under a principal use framework.
The goods at issue were imported by Keystone Automotive Operations and consist of various side bars, nerf bars and bars attached to motor vehicles, liquidated under Harmonized Tariff Schedule subheading 8708.29.5060. At issue is whether the bars, commonly referred to as truck steps, are properly excluded from Section 301 duties under secondary subheading 9903.88.03.
U.S. note 20(iii)(213) excludes "side protective attachments" from the duties on Chinese products. The exclusion was originally requested by automotive manufacturer Polaris to cover its "side armor" products.
The court first sought to assess whether the provision for "side protective attachments" refers to a particular item, making it an "eo nomine" provision, or describes the products' principal use, making it a principal use provision. Choe-Groves held that "side protective attachments" is a principal use provision. The judge said that while the term "protective" is an adjective, it modifies the word "attachments" in a way that "convincingly suggests that the attachments on the side of the vehicle must be used in a protective manner."
The court turned to the dictionary definition of the term "protective" to support its conclusion, noting that the definition "leads the Court to conclude that" the provision "inherently suggests use because the phrase connotes that an attachment" described by note 20(iii) is an "article that protects the vehicle on the side on which it is attached." Choe-Groves sided with the government, which argued that something that is "protective" is "something whose use or function is to provide protection."
As an aside, the court said the provision doesn't require that only the side of the vehicle must be protected. If the drafter of the exclusion meant for it to only cover such products, the provision would have read as "side-protective attachments," the judge said.
Choe-Groves next held that the provision isn't an eo nomine provision. The court noted that Keystone admitted at oral argument its goods aren't called side protective attachments. Instead, the importer argued that the phrase is a description of a class or kind of product that is attached to the side of a vehicle. Choe-Groves held that there's no evidence that anyone in the industry uses this term in commerce. Since there's no evidence showing the term" side protective attachments" identifies a product by a "specific name, or a product common in commerce," the court said the phrase isn't an eo nomine provision.
However, the court sent the case to a bench trial because there weren't enough undisputed facts with which the court could rule on whether the products' principal use is as a side protective attachment. The undisputed facts don't allow the court to assess the principal use factors, including "the factors regarding the use of the subject merchandise in the same manner as the side protective attachments, the economic practicality of so using the import, the expectation of the ultimate purchasers, and the recognition in the trade of the use of the subject merchandise," the court said.
(Keystone Automotive Operations v. U.S., Slip Op. 24-108, CIT # 21-00215, dated 10/07/24; Judge: Jennifer Choe-Groves; Attorneys: Eric Rock of Rock Trade Law for plaintiff Keystone Automotive Operations; Justin Miller for defendant U.S. government)