Ford Motor Company v. United States

United States Court of Appeals
for the Federal Circuit
______________________
FORD MOTOR COMPANY,
Plaintiff-Appellee
v.
UNITED STATES,
Defendant-Appellant
______________________
2018-1018
______________________
Appeal from the United States Court of International
Trade in No. 1:13-cv-00291-MAB, Judge Mark A. Barnett.
______________________
Decided: June 7, 2019
______________________
PETER D. KEISLER, Sidley Austin LLP, Washington,
DC, argued for plaintiff-appellee. Also represented by
RICHARD M. BELANGER, BARBARA GUY BROUSSARD, DANIEL
J. FEITH, ERIKA MALEY, GORDON D. TODD.
MICHAEL SHIH, Appellate Staff, Civil Division, United
States Department of Justice, Washington, DC, argued for
defendant-appellant. Also represented by JEANNE
DAVIDSON, MATTHEW JAMES GLOVER, JOSEPH H. HUNT;
BEVERLY A. FARRELL, JASON M. KENNER, AMY RUBIN, Inter-
national Trade Field Office, Commercial Litigation
Branch, Civil Division, United States Department of Jus-
tice, New York, NY; YELENA SLEPAK, Office of the Assistant
2 FORD MOTOR COMPANY v. UNITED STATES
Chief Counsel, United States Bureau of Customs and Bor-
der Protection, United States Department of Homeland Se-
curity, New York, NY.
______________________
Before DYK, WALLACH, and HUGHES, Circuit Judges.
WALLACH, Circuit Judge.
Appellee Ford Motor Company (“Ford”) sued Appellant
United States (“the Government”) in the U.S. Court of In-
ternational Trade (“CIT”), challenging U.S. Customs and
Border Protection’s (“Customs”) classification of its model
year (“MY”) 2012 Transit Connect 6/7 1 vehicles under Har-
monized Tariff Schedule of the United States (“HTSUS”) 2
Subheading 8704.31.00, which bears a duty rate of 25% ad
valorem. Ford and the Government filed cross-motions for
summary judgment, with Ford contending that its subject
merchandise is properly classified under HTSUS Subhead-
ing 8703.23.00, which bears a lower duty rate of 2.5% ad
valorem. The CIT denied the Government’s Cross-Motion
and granted Ford’s Cross-Motion, thereby holding that
Ford’s proposed classification under HTSUS Subheading
8703.23.00 is correct. Ford Motor Co. v. United States, 254
F. Supp. 3d 1297, 1333 (Ct. Int’l Trade 2017); see J.A. 75–
76 (Judgment).
The Government appeals. We have jurisdiction pursu-
ant to 28 U.S.C. § 1295(a)(5) (2012). We reverse.
1 Transit Connect 6/7 refers to certain vehicles made
by Ford from the Transit Connect model line with vehicle
identification numbers (“VIN”) containing “either a [num-
ber] 6 or 7 in the sixth digit.” J.A. 5540.
2 “All citations to the HTSUS refer to the 20[11] ver-
sion, as determined by the date of importation of the mer-
chandise.” LeMans Corp. v. United States, 660 F.3d 1311,
1314 n.2 (Fed. Cir. 2011).
FORD MOTOR COMPANY v. UNITED STATES 3
BACKGROUND
I. The Subject Merchandise
This appeal involves a single entry of subject merchan-
dise, “which entered at the Port of Baltimore on December
26, 2011.” Ford, 254 F. Supp. 3d at 1303 (citation omit-
ted). 3 Ford originally began importing its line of Transit
Connect 6/7s into the United States in 2009. Id. at 1302.
Ford also produces a similar vehicle called the Transit Con-
nect 9. See id. at 1304 n.13. 4 Ford based the design of both
types of Transit Connect vehicles on its then-existing Eu-
ropean V227 line of vehicles and imported the Transit Con-
nects from its factory in Turkey. See id. at 1305.
Specifically, “Ford’s European V227 line included” (1) “the
double-cab-in-van (DCIV)” and (2) “the Cargo Van.” Id. (in-
ternal quotation marks and citations omitted). “Ford based
the subject merchandise on its European V227 DCIV, not
its Cargo Van.” Id. (citations omitted).
Before importation into the United States, Ford avers
that it “modified the European V227 DCIV to comply with
all relevant U.S. safety standards,” including the Federal
Motor Vehicle Safety Standards (“FMVSS”). Id. (citations
omitted). For instance, Ford redesigned the second row of
seats’ underbody support structure; added side-impact
beams and foam blocks for protection; and changed the ve-
hicle’s lighting, labels, and turn signals. Id. at 1306. More-
over, “Ford designed the Transit Connect on the Ford Focus
3 Because the parties do not dispute the material
facts, we cite to the CIT’s recitation of the facts for ease of
reference. See Ford, 254 F. Supp. 3d at 1302–14.
4 Like the Transit Connect 6/7s, the “Transit Con-
nect 9s contain the number 9 in the sixth digit of the VIN.”
Ford, 254 F. Supp. 3d at 1304 n.13 (citations omitted). The
Transit Connect 9s “are imported with a three-passenger
second row seat.” Id. (citation omitted).
4 FORD MOTOR COMPANY v. UNITED STATES
platform, which means that” the two vehicle lines share
similar features, specifically, “[the Transit Connect] has
the same chassis and drivetrain as the Ford Focus passen-
ger vehicle.” Id. (internal quotation marks, brackets, and
citations omitted). Ford designated its Transit Connects in
the United States as part of the V227N line, which includes
the Transit Connect Van (i.e., the Transit Connect 6/7) and
the Transit Connect Wagon (i.e., the Transit Connect 9).
See id. at 1307 & n.18. Ford displayed its Transit Connect
models at auto shows and advertised “in magazines and on
auto shopping websites.” Id. at 1306 (internal quotation
marks and citations omitted). “Each Transit Connect was
built to order,” with all available customization options
identified in an online brochure. Id. (internal quotation
marks and citations omitted).
At the time of importation, the subject merchandise
had several relevant characteristics. Ford specified the
subject merchandise’s Gross Vehicle Weight Rating
(“GVWR”) as 5,005 pounds. See id. at 1307; see also 49
C.F.R. § 523.2 (2011) (explaining that GVWR refers to “the
value specified by the manufacturer as the loaded weight
of a single vehicle”). The Transit Connect 9, by contrast,
had a GVWR of 4,965 pounds. See Ford, 253 F. Supp. 3d
at 1307. 5 The Transit Connect 6/7s had a “four cylinder
5 Although the CIT recited that Transit Connect 9s
“are assigned a GVWR of 4[,]695 pounds,” Ford, 254 F.
Supp. 3d at 1307 (emphasis added) (citing J.A. 5945), this
was clearly a typographical error. The CIT cited to the par-
ties’ joint statement of undisputed facts, which stipulated
that those vehicles “are assigned a GVWR of 4[,]965”
pounds. J.A. 5945 (emphasis added). Indeed, elsewhere,
the CIT acknowledged the correct number. See Ford, 254
F. Supp. 3d at 1326 (summarizing one of Ford’s arguments
and acknowledging “the Transit Connect 9’s 4[,]965 pound
GVWR”).
FORD MOTOR COMPANY v. UNITED STATES 5
gasoline engine, . . . a steel unibody construc-
tion[,] . . . front-wheel drive[,] rear passenger seats with
seat anchors[,] . . . underbody bracing[,] . . . front suspen-
sion[,] . . . and over [fifty] inches of space from floor to ceil-
ing in the rear.” Id. (citations omitted). The subject
merchandise “had swing-out front doors with windows, sec-
ond-row sliding doors with windows,” and “swing-out rear
doors, some of which had windows.” Id. (internal quotation
marks and citations omitted). “[N]o Transit Connect 6/7s
had a panel or barrier between the first and second row of
seats.” Id. (internal quotation marks and citation omitted).
When imported, the subject merchandise had “second row
seats; seat belts for every seating position; permanent brac-
ing in the side pillars of the car body,” as well as “child-
locks in the sliding side doors; dome lighting in the front,
middle, and rear of the vehicle; a full length molded cloth
headliner; coat hooks in the second row; and a map pocket
attached to the front driver seat.” Id. (citations omitted).
The vehicles also had “front vents and front speakers,” cup
holders in the center and rear console, and “carpeted foot-
wells in front of the second row seat.” Id. at 1307, 1308
(internal quotation marks and citation omitted). However,
the vehicles “did not have rear (behind the front seats)
vents, speakers, . . . handholds”; “side airbags in the area
behind the front seats”; or “a cargo mat.” Id. at 1308 (cita-
tions omitted). “[T]he painted metal floor of the cargo area
was left exposed.” Id. (citations omitted).
Central to the underlying dispute were the Transit
Connect 6/7s’ second row seats. “[T]he second row
seats . . . did not include headrest[s], certain seatback
wires, a tumble lock mechanism, or accompanying labels,
and were wrapped in cost-reduced fabric.” Id. (internal
quotation marks, brackets, and citations omitted). When
Ford began importing MY 2010 Transit Connect 6/7s (as
opposed to the MY 2012 versions at issue here), it used rear
seats similar to those that were eventually used in the MY
2012 Transit Connect 9s. See id. at 1308–09. To reduce
6 FORD MOTOR COMPANY v. UNITED STATES
costs, Ford created, “[i]n mid-MY[ ]2010,” its “first cost-re-
duced seat (‘CRSV-1’),” which “resulted in the removal of
the head restraints, torsion bar assembly and mount, tum-
ble lock mechanism and associated labels, and backrest re-
inforcement pad from the MY[ ]2010 Transit Connect 6/7
rear seat.” Id. at 1310 (citations omitted). Ford subse-
quently created its second cost-reduced seat (“CRSV-2”),
which are the seats that were used in the subject merchan-
dise. See id. at 1311. These seats “incorporated the follow-
ing changes from CRSV-1”: (1) “removal of four of the
seven seatback wires,” (2) “wrapping of the seat in a cost-
reduced fire-resistant grey woven cover[,] . . . which is not
the same as the fabric used to cover the front seat,” (3) “re-
placement of the front leg seat anchor cover, which was de-
signed to attach to the tumble lock mechanism, with a
cover that did not contain a space for the tumble lock mech-
anism,” (4) “removal of the red indicator flags and housings
associated with the tumble lock mechanism to leave a bare
metal lever,” (5) “removal of the small rubber pad from the
rear seat leg intended to decrease noise and vibration from
around the rear floor latches,” (6) removal of “the fabric
mesh covering the rear seat bottom,” and (7) discontinua-
tion of the application of the “black paint to the visible,
metal portions of the [rear] seat frame.” Id. (internal quo-
tation marks, brackets, and citations omitted). Although
Ford’s “engineers concluded that the fabric change and re-
moval of seatback wires did not affect the CRSV-2’s
FMVSS compliance,” “Ford did not conduct consumer test-
ing or surveys before implementing the CRSV-2.” Id. (in-
ternal quotation marks and citations omitted).
After importation, Ford made several changes to the
subject merchandise once the merchandise cleared Cus-
toms, but while the imported merchandise “w[as] still
within the confines of the port.” Id. at 1312. For instance,
all Transit Connects underwent processing, such as “re-
moving . . . a protective covering,” “disengaging Transpor-
tation Mode,” and “checking for low fuel.” Id. (internal
FORD MOTOR COMPANY v. UNITED STATES 7
quotation marks and citations omitted). The Transit Con-
nect 6/7s underwent “additional” processing (“post-impor-
tation processing”). Id. Specifically, “the second-row seat[s
were] unbolted and removed, along with the associated sec-
ond row safety restraints. A steel panel was then bolted
into the second row footwell to create a flat surface behind
the first rows of seats.” Id. (footnote and citations omitted).
“A molded cargo mat was placed over the floor behind the
first row,” “[s]cuff plates were added inside the second-row
doors,” and “[i]n some vehicles the sliding door windows
were replaced with a solid panel.” Id. (citations omitted).
Therefore, “[a]ll Transit Connects are imported with
second row seats, but the Transit Connect 6/7s are deliv-
ered to the customer as a two seat cargo van.” Id. at 1307
(citations omitted). “The removed seats were recycled or
otherwise disposed of.” Id. at 1312 n.36 (citation omitted).
Following this additional post-importation processing, the
Transit Connect 6/7s maintained the following features:
“underbody second-row seat support; anchors and fittings
for the second-row seat[;] permanent bracing in the side
pillars to support the removed safety restraints; and the
beam and foam in the side sliding doors for rear passenger
crash protection.” Id. at 1312 (footnote and citations omit-
ted). However, during the post-importation processing,
“[t]he anchor holes for the second row seat are plugged and
no longer readily accessible.” Id. at 1312 n.38.
II. Procedural History
In February 2012, “the Port of Baltimore notified Ford
that [Customs] had initiated an investigation into
Ford . . . importations.” Id. at 1314 (internal quotation
marks and citations omitted). Following the investigation,
in January 2013, Customs found that the subject merchan-
dise was properly classified under HTSUS Heading 8704,
specifically HTSUS Subheading 8704.31.00. Customs Rul-
ing HQ H220856 (Jan. 30, 2013), 2013 WL 1793233, at *11.
Accordingly, Customs liquidated the subject merchandise
8 FORD MOTOR COMPANY v. UNITED STATES
at the 25% duty rate associated with HTSUS Subheading
8704.31.00. Ford, 254 F. Supp. 3d at 1303. “Ford timely
and properly protested” this decision. Id. Customs denied
Ford’s protest. Id.
Ford filed a complaint with the CIT, alleging Customs
improperly denied its protest. J.A. 98. The CIT held that
the subject merchandise should have been classified under
HTSUS Subheading 8703.23.00. Ford, 254 F. Supp. 3d at
1333. The CIT evaluated the subject merchandise’s condi-
tion at the time of importation, see id. at 1316–17, and con-
cluded “the Transit Connect 6/7’s structural and auxiliary
design features point to a principal design for the transport
of persons,” id. at 1328. The CIT explained that “because
[HTSUS H]eading 8703 is not controlled by use, and an as-
sessment of intended use is not necessary to distinguish
[HTSUS Heading] 8703 from 8704,” it found “it unneces-
sary to consider principal or intended use, or the [relevant
use] factors, to define the tariff terms.” Id. at 1332. Fur-
thermore, the CIT rejected the argument that Ford’s post-
importation processing constituted a disguise or artifice,
determining instead that Ford’s removal of the rear seats
“after importation is immaterial” and that Ford engaged in
legitimate tariff engineering. Id. at 1324 (footnote omit-
ted).
DISCUSSION
I. Standard of Review and Legal Framework
We review the CIT’s decision to grant summary judg-
ment de novo, applying the same standard used by the CIT
to assess Customs’ classification. See Otter Prods., LLC v.
United States, 834 F.3d 1369, 1374–75 (Fed. Cir. 2016).
“Although we review the decision of the CIT de novo, we
give great weight to the informed opinion of the CIT and it
is nearly always the starting point of our analysis.”
Schlumberger Tech. Corp. v. United States, 845 F.3d 1158,
1162 (Fed. Cir. 2017) (internal quotation marks, altera-
tions, and citation omitted). Pursuant to U.S. Court of
FORD MOTOR COMPANY v. UNITED STATES 9
International Trade Rule 56(a), the CIT “shall grant sum-
mary judgment if the movant shows that there is no genu-
ine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.”
“The classification of merchandise involves a two-step
inquiry.” ADC Telecomms., Inc. v. United States, 916 F.3d
1013, 1017 (Fed. Cir. 2019). First, we ascertain the mean-
ing of the terms within the relevant tariff provision, which
is a question of law, and, second, we determine whether the
subject merchandise fits within those terms, which is a
question of fact. See Sigma-Tau HealthSci., Inc. v. United
States, 838 F.3d 1272, 1276 (Fed. Cir. 2016). “Where, as
here, no genuine dispute exists as to the nature of the sub-
ject merchandise, the two-step inquiry collapses into a
question of law we review de novo.” ADC, 916 F.3d at 1017
(internal quotation marks and citation omitted).
The HTSUS governs the classification of merchandise
imported into the United States. See Wilton Indus., Inc. v.
United States, 741 F.3d 1263, 1266 (Fed. Cir. 2013). The
HTSUS “shall be considered . . . statutory provisions of law
for all purposes.” 19 U.S.C. § 3004(c)(1) (2012); see
Chemtall, Inc. v. United States, 878 F.3d 1012, 1026 (Fed.
Cir. 2017) (explaining that “the tenth-digit statistical suf-
fixes . . . are not statutory,” as those suffixes are not incor-
porated in the HTSUS’s legal text). “The HTSUS scheme
is organized by headings, each of which has one or more
subheadings; the headings set forth general categories of
merchandise, and the subheadings provide a more particu-
larized segregation of the goods within each category.” Wil-
ton Indus., 741 F.3d at 1266. “The first four digits of an
HTSUS provision constitute the heading, whereas the re-
maining digits reflect subheadings.” Schlumberger, 845
F.3d at 1163 n.4. “[T]he headings and subheadings . . . are
enumerated in chapters 1 through 99 of the HTSUS (each
of which has its own section and chapter notes) . . . .” R.T.
Foods, Inc. v. United States, 757 F.3d 1349, 1353 (Fed. Cir.
2014). The HTSUS “also contains the ‘General Notes,’ the
10 FORD MOTOR COMPANY v. UNITED STATES
‘General Rules of Interpretation’ (‘GRI’), the ‘Additional
[U.S.] Rules of Interpretation’ (‘ARI’), and various appen-
dices for particular categories of goods.” Id. (footnote omit-
ted).
The GRI and the ARI govern the classification of goods
within the HTSUS. See Otter Prods., 834 F.3d at 1375.
“The GRI apply in numerical order, meaning that subse-
quent rules are inapplicable if a preceding rule provides
proper classification.” Schlumberger, 845 F.3d at 1163.
GRI 1 provides, in relevant part, that “classification shall
be determined according to the terms of the headings and
any relative section or chapter notes.” GRI 1 (emphasis
added). “Under GRI 1, [we] first construe[] the language of
the heading, and any section or chapter notes in question,
to determine whether the product at issue is classifiable
under the heading.” Schlumberger, 845 F.3d at 1163 (in-
ternal quotation marks and citation omitted). “[T]he pos-
sible headings are to be evaluated without reference to
their subheadings, which cannot be used to expand the
scope of their respective headings.” R.T. Foods, 757 F.3d
at 1353 (citations omitted). “Absent contrary legislative in-
tent, HTSUS terms are to be construed according to their
common and commercial meanings, which are presumed to
be the same.” Well Luck Co. v. United States, 887 F.3d
1106, 1111 (Fed. Cir. 2018) (internal quotation marks and
citation omitted). “To discern the common meaning of a
tariff term, we may consult dictionaries, scientific authori-
ties, and other reliable information sources.” Kahrs Int’l,
Inc. v. United States, 713 F.3d 640, 644 (Fed. Cir. 2013) (ci-
tation omitted). By contrast, the ARI contain, inter alia,
specific rules for interpreting use and textile provisions in
the HTSUS. See ARI 1(a)–(d); Schlumberger, 845 F.3d at
1163 n.5 (explaining that the ARI do not apply to eo nomine
provisions). ARI 1(a) provides that, when a tariff provision
is “controlled by use (other than actual use),” then classifi-
cation “is to be determined in accordance with the use in
the United States at, or immediately prior to, the date of
FORD MOTOR COMPANY v. UNITED STATES 11
importation, of goods of that class or kind to which the im-
ported goods belong, and the controlling use is the principal
use.” ARI 1(b) governs classification by “actual use,” rather
than principal use.
We may also consider the relevant Explanatory Notes
(“EN”). Fuji Am. Corp. v. United States, 519 F.3d 1355,
1357 (Fed. Cir. 2008). “The [ENs] provide persuasive guid-
ance and are generally indicative of the proper interpreta-
tion, though they do not constitute binding authority.”
Chemtall, 878 F.3d at 1019 (internal quotation marks and
citation omitted).
Once we determine the appropriate heading, we apply
GRI 6 to determine the appropriate subheading. See Or-
lando Food Corp. v. United States, 140 F.3d 1437, 1442
(Fed. Cir. 1998). GRI 6 provides that “the classification of
goods in the subheadings of a heading shall be determined
according to the terms of those subheadings and any re-
lated subheading notes and, mutatis mutandis, to the
above [GRIs], on the understanding that only subheadings
at the same level are comparable.”
II. The CIT Erred in Granting Summary Judgment for
Ford and Denying Summary Judgment for the
Government
A. HTSUS Heading 8703 Is an Eo Nomine Provision that
Inherently Suggests Use
HTSUS Heading 8703 covers “[m]otor cars and other
motor vehicles principally designed for the transport of per-
sons (other than those of [HTSUS H]eading 8702), includ-
ing station wagons and racing cars.” The CIT found that
an examination of the vehicle’s use was not “necessary or
helpful to arriving at the correct classification.” Ford, 254
F. Supp. 3d at 1331. The Government contends the CIT
erred by classifying the subject merchandise under HTSUS
Heading 8703, contrary to Customs’ classification. See Ap-
pellant’s Br. 17. The Government argues Customs
12 FORD MOTOR COMPANY v. UNITED STATES
correctly determined that “the overwhelming majority of
[the relevant design features] indicated that the [Transit]
Connect 6/7 is not principally designed for the transport of
persons.” Id. at 19 (internal quotation marks omitted). Ac-
cording to the Government, it was proper for Customs to
consider, inter alia, factors that are typically used to eval-
uate the imported product’s use in the United States. See
id. at 36. We agree, in part, with the Government, and hold
the CIT erred by refusing to consider intended use as part
of its analysis.
“We first must assess whether the subject [h]eading[]
constitute[s an] eo nomine or use provision[] because differ-
ent rules and analysis will apply depending upon the head-
ing type.” Schlumberger, 845 F.3d at 1164 (first citing
Kahrs, 713 F.3d at 645–46 (defining eo nomine provision);
then citing Aromont USA, Inc. v. United States, 671 F.3d
1310, 1312–16 (Fed. Cir. 2012) (defining principal use pro-
vision)). “[W]e consider a HTSUS heading or subheading
an eo nomine provision when it describes an article by a
specific name.” CamelBak Prods., LLC v. United States,
649 F.3d 1361, 1364 (Fed. Cir. 2011) (citation omitted).
“Absent limitation or contrary legislative intent, an eo
nomine provision includes all forms of the named article,
even improved forms.” Id. at 1364–65 (internal quotation
marks, brackets, and citation omitted). Generally, “a use
limitation should not be read into an eo nomine provision.”
Carl Zeiss, Inc. v. United States, 195 F.3d 1375, 1379 (Fed.
Cir. 1999). However, doing so may be appropriate where
“the name itself inherently suggests a type of use.” Id. Al-
ternatively, “once tariff terms have been defined, . . . use of
the subject articles [may] define[] an article[’]s[] identity
when determining whether it fits within the classification’s
scope.” GRK Can., Ltd. v. United States, 761 F.3d 1354,
1359 (Fed. Cir. 2014).
Although HTSUS Heading 8703 is an eo nomine provi-
sion, the “principally designed for” portion inherently sug-
gests a type of use, i.e., “the transport of persons.” In
FORD MOTOR COMPANY v. UNITED STATES 13
Marubeni America Corp. v. United States (Marubeni II), we
considered the proper classification of Nissan’s Pathfinder
vehicle, examining the same two headings as the present
appeal, and affirmed the CIT’s conclusion that the subject
merchandise was properly classified under HTSUS Head-
ing 8703, as opposed to HTSUS Heading 8704. See 35 F.3d
530, 532 (Fed. Cir. 1994). In interpreting HTSUS Heading
8703, Marubeni II explained that the relevant dictionary
definitions from Webster’s Third New International Dic-
tionary of the English Language (1986) define “‘principally’
as ‘in the chief place, chiefly[]’ and . . . ‘designed’ as ‘done
by design or purposefully opposed to accidental or inadvert-
ent; intended, planned.’” Id. at 534. Given these defini-
tions, HTSUS Heading 8703’s purposeful language—that
asks whether the merchandise is chiefly intended for the
transportation of persons—inherently suggests intended
use. See id.
We have held in other cases that an eo nomine provi-
sion may require looking to intended use. In GRK, we con-
sidered a tariff heading for “other wood screws” and
explained that central to the “common understanding” of
that heading is the “intended use of [the] screws” because
the tariff provision is not directed to “screws made of wood,”
“but rather metal screws used to fasten wood.” 761 F.3d at
1359. Similarly, in Len-Ron Manufacturing Co. v. United
States, we considered a heading for “vanity cases” and
agreed with the CIT that the heading covered “all forms of
the articles,” i.e., that the heading is eo nomine. 334 F.3d
1304, 1311 (Fed. Cir. 2003). Nevertheless, we explained
that use was a relevant consideration because “for a hand-
bag or case to be classified as a vanity case, containing, car-
rying, or organizing cosmetics must be its predominant
use, rather than simply one possible use.” Id. Therefore,
we adopted the CIT’s definition of vanity case as “a small
handbag or case used to hold cosmetics” and explained that
the at-issue “cosmetics bags are indisputably small hand-
bags or cases designed and intended to hold cosmetics,”
14 FORD MOTOR COMPANY v. UNITED STATES
such that they were classifiable as vanity cases. Id. at 1312
(emphasis added) (internal quotation marks omitted). As
in those cases, use is relevant in construing “other motor
vehicles principally designed for the transport of persons”
in HTSUS Heading 8703 because this language suggests
that classification is necessarily intertwined with whether
an imported vehicle is chiefly intended to be used to
transport persons. Cf. Irwin Indus. Tool Co. v. United
States, 920 F.3d 1356, 1361 (Fed. Cir. 2019) (holding that
“the terms pliers and wrenches” do not “inherently sug-
gest . . . use,” where “the language of the particular head-
ings . . . do[] not imply that use or design is a defining
characteristic” (emphasis added)).
This conclusion follows from our precedent in Maru-
beni II, which implicitly recognized that HTSUS Heading
8703 inherently requires looking to intended use. There,
the court began its consideration of HTSUS Heading 8703
by conducting what appears to be an eo nomine analysis,
without stating as much. See Marubeni II, 35 F.3d at 534–
35 (construing the meaning of the heading under the GRIs
without reference to the ARIs). We explained that “the
statutory language” of HTSUS Heading 8703, which em-
ploys the word principally, “is clear that a vehicle’s in-
tended purpose of transporting persons must outweigh an
intended purpose of transporting goods” and that “[t]o
make this determination, . . . both the structural and aux-
iliary design features must be considered.” Id. at 535.
Then, Marubeni II proceeded by endorsing the considera-
tion of use. See id. at 536. Marubeni II expressly approved
of the CIT’s reasoning below, which we acknowledged
“carefully applied the proper standards” and evaluated not
only the structural and auxiliary design features, but also
“the marketing and engineering design goals (consumer de-
mands, off the line parts availability, etc.).” Id.
For its part, the CIT’s opinion discussed “marketing, as
reflective of design intent and execution,” under a heading
titled “[m]arketing and use indicate the Pathfinder was
FORD MOTOR COMPANY v. UNITED STATES 15
designed for transport of persons.” Marubeni Am. Corp. v.
United States (Marubeni I), 821 F. Supp. 1521, 1528 (Ct.
Int’l Trade 1993). The CIT explained that the marketing
evidence shows “that cargo capacity was not a major objec-
tive of the designer vis-à-vis the competition, at least as re-
flected in its polar charts. Product development
documentation and advertising were consistent. The em-
phasis was on family use, loading groceries and sports
equipment and ‘go anywhere’ élan.” Id. (citation omitted).
The CIT noted that, although “[t]he marketing and product
planning documents mention cargo capacity[, it] does not
appear to be a high priority.” Id. at 1528 n.13. Given our
endorsement of the CIT’s consideration of marketing mate-
rials that speak to the use of the product, see Marubeni II,
35 F.3d at 536, we therefore have signaled that considera-
tion of use is appropriate for HTSUS Heading 8703, see id.;
see also Aromont, 671 F.3d at 1313 (listing appropriate con-
siderations for use provisions, such as “use in the same
manner as merchandise which defines the class” and “the
manner in which the merchandise is advertised and dis-
played”).
Ford’s counterarguments are unavailing. First, Ford
avers Western States Import Co. v. United States supports
the conclusion that “intended use” is not relevant to the
HTSUS Heading 8703 analysis. Appellee’s Br. 62 (citing
154 F.3d 1380 (Fed. Cir. 1998)). In Western States, we af-
firmed the classification of merchandise under a subhead-
ing for bicycles other than bicycles “not designed for use
with [wide] tires.” 154 F.3d at 1381. The importer disa-
greed with this classification and argued Customs should
have considered “the intent of the manufacturer,” id. at
1382, as evidenced by the fact that “the bicycles were
shipped with narrow tires,” id. at 1383. We rejected this
argument because it “changes the language of the statute,
according primacy to the designer’s state of mind and lim-
iting the examination of the objective physical design fea-
tures of a bicycle to a single facet of that design,” i.e., “the
16 FORD MOTOR COMPANY v. UNITED STATES
tire with which the bicycle is equipped.” Id. Western States
does not stand for the proposition that a manufacturer’s
design goals cannot be considered as one of many relevant
considerations under the separate HTSUS Heading 8703.
Indeed, Marubeni II specifically allows for consideration of
“the reasons behind [certain] design decisions.” 35 F.3d at
536. Moreover, although Western States recognized that
HTSUS Heading 8703’s principally designed language is
“[t]he closest corollary” to the provision at issue there, the
panel went to great lengths to distinguish the heading at
issue from HTSUS Heading 8703. 154 F.3d at 1382; see id.
(“The specific language at issue here requires [the im-
porter] to establish affirmatively that its product is not de-
signed for a specific use, rather than ‘specially’ or
‘principally’ designed for a specific purpose. The word
‘not’ . . . limits the tariff provision to bikes with design fea-
tures that make them not suitable for or capable of use with
wider tires. The use of the word ‘not’ does not contemplate
a balancing of design features to determine what is princi-
pal, as in Marubeni[ II].”). The panel concluded that,
“[e]ven if the bicycles at issue were designed with narrow
tires in mind, or ‘principally designed’ with narrow tires in
mind, they were not ‘not designed for use with’ wider tires.”
Id. at 1383 (footnote omitted). Here, the principally de-
signed language necessitates a broader inquiry, as de-
scribed in Marubeni II, involving the “balancing of
[structural and auxiliary] design features,” id. at 1382, and
the “reasons behind [those] design decisions,” 35 F.3d at
536.
Second, Ford contends Customs improperly considered
post-importation processing rather than limiting its evalu-
ation to the subject merchandise’s “condition as imported.”
Appellee’s Br. 38. “The rule is well established that in or-
der to produce uniformity in the imposition of duties, the
dutiable classification of articles imported must be ascer-
tained by an examination of the imported article itself, in
the condition in which it is imported.” United States v.
FORD MOTOR COMPANY v. UNITED STATES 17
Citroen, 223 U.S. 407, 414–15 (1912) (internal quotation
marks and citations omitted). Our holding today does not
controvert this rule, as this rule does not stand for the prop-
osition that pre-importation activities can never be rele-
vant. Consideration of these factors flows from the plain
meaning of the term “principally designed,” which means
chiefly “done by design or purposefully . . . ; intended[ or]
planned.” Marubeni II, 35 F.3d at 534 (emphases added)
(internal quotation marks and citation omitted). Indeed,
Ford apparently recognizes that its argument only pre-
cludes consideration of pre-importation design goals if we
construe HTSUS Heading 8703 as not allowing for consid-
eration of use. Oral Arg. at 28:03–30, http://oralargu-
ments.cafc.uscourts.gov/default.aspx?fl=2018-1018_31320
19.mp3 (Q: “Is the condition at importation confined to
just the physical characteristics or do you look to the struc-
ture of the sale and marketing and all of that . . . not on a
post-importation look, but on a pre-importation look?”
A: “I think that depends on what kind of heading this is.
This is not a use provision. This is an eo nomine provi-
sion . . . .”). Because the “principally designed for” lan-
guage of HTSUS Heading 8703 inherently requires
considerations of intended use, consideration of pre-impor-
tation design goals is relevant here. Therefore, we consider
pre-importation design goals below, along with the subject
merchandise’s condition as imported.
We conclude this appeal presents one of the very lim-
ited circumstances where the relevant heading, HTSUS
Heading 8703, is an eo nomine provision for which consid-
eration of use is appropriate because HTSUS Heading 8703
inherently suggests looking to intended use. See Kahrs,
713 F.3d at 646 (“Generally, we should not read a use lim-
itation into an eo nomine provision unless the name itself
inherently suggests a type of use.”). The CIT erred by not
considering use. See Ford, 254 F. Supp. 3d at 1332 (finding
“it unnecessary to consider principal or intended use, or the
[attendant] factors”). Nevertheless, because the parties do
18 FORD MOTOR COMPANY v. UNITED STATES
not allege that a “genuine dispute exists as to the nature of
the subject merchandise, the two-step inquiry collapses
into a question of law,” and we proceed by conducting a
proper analysis of the relevant headings. ADC, 916 F.3d at
1017 (internal quotation marks and citation omitted). See
generally Appellant’s Br.; Appellee’s Br.
B. The Subject Merchandise Does Not Fall Within HTSUS
Heading 8703
In classifying the subject merchandise under HTSUS
Heading 8703, the CIT held the subject merchandise’s
“structural and auxiliary design features point to a princi-
pal design for the transport of persons.” Ford, 254 F. Supp.
3d at 1328. For structural design features, the CIT found
support for this conclusion in “the Transit Connect 6/7’s
structural similarity to the Transit Connect 9 passenger
wagon and its consistency with relevant parts of [the]
[ENs].” Id. at 1326. For auxiliary design features, the CIT
determined “the CRSV-2 is still a seat, albeit a cheaper
and, perhaps, less attractive one,” and the CIT pointed to
“additional auxiliary design features,” such as “carpeted
footwells” and “child-locks in the sliding doors” to support
its conclusion. Id. at 1328.
The Government argues that the CIT erred in classify-
ing the subject merchandise under HTSUS Heading 8703
because “the structural and auxiliary design features of the
[Transit] Connect 6/7—viewed as a whole—failed to
demonstrate that the vehicle was ‘principally designed’ for
passengers.” Appellant’s Br. 37. The Government also
avers that “Ford marketed the [Transit] Connect 6/7 exclu-
sively as a cargo van; consumers and industry publications
recognized the [Transit] Connect 6/7 exclusively as a cargo
van; purchasers used the [Transit] Connect 6/7 exclusively
as a cargo van; and Ford itself described the [Transit] Con-
nect 6/7 exclusively as a cargo van.” Id. at 38–39. We agree
with the Government that the CIT erred in classifying the
subject merchandise under HTSUS Heading 8703.
FORD MOTOR COMPANY v. UNITED STATES 19
The relevant inquiry for classification under HTSUS
Heading 8703 is “that a vehicle’s intended purpose of trans-
porting persons must outweigh an intended purpose of
transporting goods” and that, “[t]o make this determina-
tion, . . . both the structural and auxiliary design features
must be considered.” Marubeni II, 35 F.3d at 535. Struc-
tural design features include “basic body, chassis, . . . sus-
pension design, [and] style and structure of the body
control access to rear.” Id. at 534 (brackets and ellipsis
omitted). Auxiliary design features include “vehicle
height,” certain features of the “rear seats,” “footwells,”
“seat belts,” and other passenger amenities. Id. at 537. In
addition, certain use considerations may be relevant, such
as “the marketing and engineering design goals (consumer
demands, off the line parts availability, etc.).” Id. at 536.
While not binding, the ENs help guide our understand-
ing of the heading. See Chemtall, 878 F.3d at 1019. The
ENs state that the heading covers “[f]our-wheeled motor
vehicles with tube chassis, having a motor-car type steer-
ing system (e.g., a steering system based on the Ackerman
principle).” EN(6), Heading 8703, HTSUS. The ENs iden-
tify “certain features which indicate that the vehicles are
principally designed for the transport of persons rather
than for the transport of goods,” such as a GVWR “rating
of less than [five] ton[s],” and “a single enclosed interior
space comprising an area for the driver and passengers and
another area that may be used for the transport of both
persons and goods.” EN, Heading 8703, HTSUS. The ENs
also list certain features that “are indicative of the design
characteristics” for HTSUS Heading 8703, such as the
(1) “[p]resence of permanent seats with safety equipment
(e.g., safety seat belts or anchor points and fittings for in-
stalling safety seat belts) for each person or the presence of
permanent anchor points and fittings for installing seats
and safety equipment in the rear area,” (2) “[p]resence of
rear windows along the two side panels,” (3) “[p]resence of
sliding, swing-out or lift-up door or doors, with windows, on
20 FORD MOTOR COMPANY v. UNITED STATES
the side panels or in the rear,” (4) “[a]bsence of a perma-
nent panel or barrier between the area for the driver and
front passengers and the rear area that may be used for the
transport of both persons and goods,” and (5) “[p]resence of
comfort features and interior finish and fittings throughout
the vehicle interior that are associated with the passenger
areas of vehicles (e.g., floor carpeting, ventilation, interior
lighting, ashtrays).” EN, Heading 8703, HTSUS.
On balance, the structural design features, auxiliary
design features, and inherent use considerations establish
that the subject merchandise is not classifiable under
HTSUS Heading 8703. The subject merchandise is not
principally designed for the transport of persons. We dis-
cuss each of these considerations in turn.
1. Structural Design Features
The structural design features favor a finding that the
subject merchandise is designed for transport of passen-
gers. The Transit Connect 6/7s “shared the same chassis
and drivetrain with the Ford Focus passenger vehicle.”
Def.’s Resps. to Pl.’s Statement of Material Facts ¶ 4, Ford
Motor Co. v. United States, No. 1:13-cv-00291-MAB (Ct.
Int’l Trade Mar. 4, 2016), ECF No. 91-13 (citations omit-
ted). Similarly, the imported Transit Connect 6/7s share
the following structural features with Transit Connect 9s:
“a Duratec 2.0[ liter], four cylinder gasoline engine”; “a
steel unibody construction”; “front-wheel drive”; “Macpher-
son strut front suspension”; “rear passenger seats with seat
anchors” 6; “underbody bracing”; “permanent bracing in the
6 Although the Transit Connect 6/7s have rear seats
when imported, the discussion below regarding auxiliary
design features demonstrates that the subject merchandise
is not principally designed to use the rear area for the
transport of persons. See infra Section II.B.2. That discus-
sion, therefore, bears on our analysis of the structural
FORD MOTOR COMPANY v. UNITED STATES 21
side pillars of the car body”; “no . . . panel or barrier be-
tween the first and second row of seats”; and “ground clear-
ance of 8.2 inches.” J.A. 4845–50. While not dispositive,
see Marubeni II, 35 F.3d at 536 (“The fact that a vehicle is
derived in-part from a truck or from a sedan is not, without
more, determinative of its intended principal design objec-
tives which were passenger transport and off-road capabil-
ity.”), these structural features demonstrate similarities
between the subject merchandise and Ford’s Transit Con-
nect 9s, which are imported as five-passenger vehicles and
do not undergo post-importation processing to convert the
passenger vehicles into cargo vans, see J.A. 5948. Notably,
the evidence indicates that the Duratec “2.0 liter engine”
and front-wheel drive are “more commonly used on passen-
ger vehicles,” a fact which indicates the significance of
these features for classification as a passenger vehicle.
J.A. 4846.
In addition, all Transit Connects had “swing-out front
doors with windows, second-row sliding side doors with
windows” that met federal “safety standards for side im-
pact,” and “swing-out rear doors, some of which had win-
dows.” J.A. 4849. The ENs, which list “[p]resence of rear
windows along the two side panels” and “[p]resence of slid-
ing, swing-out or lift-up door or doors, with windows, on the
side panels or in the rear” as indicative of design charac-
teristics, demonstrate that these features of the subject
merchandise are consistent with a passenger vehicle. EN,
Heading 8703, HTSUS. However, a Ford brochure indi-
cates the rear doors are designed for cargo, describing the
“[r]ear [c]argo [d]oors” as capable of “be[ing] opened wide,
up to 180 degrees, for easy access to the expansive cargo
area to make loading easier” and stating the “[w]ide rear
opening makes rear access and loading or unloading easy.”
design features to the extent it relates to the presence of
the rear seats.
22 FORD MOTOR COMPANY v. UNITED STATES
J.A. 2825 (emphasis added); see J.A. 2826 (highlighting the
“[r]ear cargo door opening width . . . [and] height” as “[k]ey
[i]nterior [c]argo [d]imensions,” along with “[c]argo length”
and “[l]ow load floor height . . . [that] makes loading and
unloading convenient”). Moreover, the two types of Transit
Connects differed in that Ford assigned the Transit Con-
nect 6/7s a higher “GVWR of 5[,]005 [pounds],” while the
Transit Connect 9s “are assigned a GVWR of 4[,]965”
pounds, indicating the subject merchandise is designed to
bear more weight. J.A. 5945; see 49 C.F.R. § 523.2. This
factor, however, does not weigh heavily against classifica-
tion under HTSUS Heading 8703 because the ENs explain
a GVWR “rating of less than [five] ton[s],” which describes
both types of Transit Connects, “indicate[s] that the vehi-
cles are principally designed for the transport of persons.”
EN, Heading 8703, HTSUS. Therefore, many of the struc-
tural design features favor the CIT’s classification under
HTSUS Heading 8703.
2. Auxiliary Design Features
A review of the auxiliary design features reveals the
Transit Connect 6/7s were not principally designed for the
transport of passengers. Admittedly, the subject merchan-
dise has some features indicative of passenger vehicles, in-
cluding “seat belts for every seating position,” J.A. 4848;
“child-lock in the sliding side doors,” J.A. 4849; “footwells
in front of a second row seat,” J.A. 4850, “head room of
more than [fifty] inches in the rear,” J.A. 4851; “dome light-
ing in the front, middle, and rear of the vehicle,” J.A. 4851;
and “coat hooks in the second row,” J.A. 4852; see EN,
Heading 8703, HTSUS (identifying the presence of “com-
fort features,” such as “interior lighting” as indicative of a
passenger vehicle). However, the auxiliary design features
of the rear seating area, when viewed in the aggregate,
demonstrate the Transit Connect 6/7s were not principally
designed for the transportation of passengers, with the
CRSV-2 designed to be temporary and removed during
post-importation processing.
FORD MOTOR COMPANY v. UNITED STATES 23
Specifically, the Transit Connect 6/7’s second row seats
“did not have headrests, certain comfort wires, or a tumble
lock mechanism.” J.A. 4847; see J.A. 5936 (explaining that
the “seat back wires provide[]”, inter alia, “lumbar support”
and “passenger comfort”). The second row seats were “cov-
ered in a reduced cost fabric” that was “different fabric
[from] the” fabric used in the Transit Connect 9s.
J.A. 4847. The Transit Connect 6/7s did not have (1) “a
cargo mat,” J.A. 5553 (citations omitted); (2) “side airbags
behind the front seats,” Pl.’s Resp. to Def.’s Statement of
Material Facts ¶ 18, Ford Motor Co. v. United States, No.
1:13-cv-00291-MAB (Ct. Int’l Trade Mar. 7, 2016), ECF No.
99-5 (citation omitted); or (3) speakers, handholds, or vents
behind the front seats, id. ¶¶ 19–21 (citations omitted); see
EN, Heading 8703, HTSUS (identifying presence of “venti-
lation” as a “comfort feature[]” for passengers, but rear ven-
tilation is lacking in the subject merchandise). Ford “left
the painted metal floor of the cargo area exposed,” which
weighs against classification in HTSUS Heading 8703.
J.A. 5553; see EN, Heading 8703, HTSUS (stating the pres-
ence of “interior finish[ings]” is indicative of a passenger
vehicle). There is a fundamental reason behind these de-
sign decisions. See Marubeni II, 35 F.3d at 536 (endorsing
the CIT’s consideration of “the reasons behind [certain] de-
sign decisions,” as a relevant consideration (emphasis
added)). Ford employed the CRSV-2 to reduce costs, while
facilitating post-importation processing of converting the
Transit Connect 6/7s into cargo vans by using sham rear
seats that would be stripped from the vehicles. See
J.A. 5941–42 (explaining that the changes to the second
row seats were a “cost reduction item,” and “these seats will
be scrapped in [the] U[nited] S[tates and] will not be used
anytime”). 7 In fact, the Transit Connects 6/7s had a
7 Because Ford made the subject merchandise to or-
der, it knew that none of the CRSV-2s in the Transit Con-
nect 6/7s would actually be used. See J.A. 4844
24 FORD MOTOR COMPANY v. UNITED STATES
different sixth-digit in their VIN from the Transit Connect
9s to indicate which vehicles should undergo post-importa-
tion processing and removal of the rear seat. See J.A. 5540
(“Ford never sold any Transit Connect vehicles with a 6 or
7 in the sixth digit of the VIN with a second row of seats or
seatbelts.” (citation omitted)).
Even if the CIT is correct that the Transit Connect 6/7s’
rear seat is capable of functioning as passenger seats in the
condition as imported, see Ford, 254 F. Supp. 3d at 1327–
28, the proper inquiry is what the auxiliary design features
tell us about the “intended purpose” of the vehicle, Maru-
beni II, 35 F.3d at 535; see Heading 8703, HTSUS (includ-
ing “motor vehicles principally designed for the transport
of persons” (emphasis added)). Although the EN to HTSUS
Heading 8703 recognizes that indicative of passenger vehi-
cles is the “[p]resence of permanent seats with safety equip-
ment . . . or the presence of permanent anchor points and
fittings for installing seats and safety equipment in the
rear area,” the CRSV-2 is not permanent. The seat and the
attendant seatbelts are designed to be removed. 8 There-
fore, as Customs recognized, Ford’s pre-importation design
goals were that the subject merchandise could be
(acknowledging that all Transit Connects are made to or-
der), 5554 (“Prior to the merchandise at issue being ordered
or manufactured, Ford had entered into a contract with its
port processor to remove and discard 100 percent of the sec-
ond row seats, seat belts and unordered windows from the
merchandise at issue, and to cover the footwells and install
a cargo mat over the exposed metal floor.”).
8 The record demonstrates the subject merchandise
“was stripped of its second row seats[ and] second row seat
belts,” J.A. 5554, and “[t]he anchor holes for the second row
seat are” designed to be “plugged and no longer readily ac-
cessible after post-importation processing,” J.A. 5948 (in-
ternal quotation marks and citation omitted).
FORD MOTOR COMPANY v. UNITED STATES 25
constructed in such a way that “only minor interior
changes were necessary to meet the design criteria of
transporting cargo.” HQ H220856, 2013 WL 1793233, at
*5; see id. (stating it took “less than a minute” to remove
the CRSV-2 and “under [five] minutes” to add “rear flooring
to cover the exposed anchor points”). Indeed, “Ford did not
[even] conduct consumer testing or surveys prior to using
the [CRSV-2].” J.A. 5944. 9 The CIT erred in its evaluation
of these auxiliary design features, which compel the con-
clusion that the subject merchandise is designed to
transport cargo.
3. Relevant Use Considerations
The relevant use considerations strongly disfavor clas-
sification as a vehicle principally designed for the transport
of passengers due to evidence of Ford’s post-importation
processing and its effect on the intended use of the Transit
Connect 6/7s. While we conclude that HTSUS Heading
8703 is an eo nomine provision, not a principal use provi-
sion, the criteria for determining principal use are also rel-
evant here. When evaluating principal use, a court makes
“a determination as to the group of goods that are commer-
cially fungible with the imported goods.” BenQ Am. Corp.
v. United States, 646 F.3d 1371, 1380 (Fed. Cir. 2011) (in-
ternal quotation marks and citation omitted). To make this
determination, a court may look to the factors outlined in
United States v. Carborundum Co. (“the Carborundum fac-
tors”). Id.; see Carborundum, 536 F.2d 373, 377 (CCPA
1976). Particularly relevant here are the following Carbo-
rundum factors: “the general physical characteristics of the
merchandise,” “use in the same manner as merchandise
9 Ford “considered affixing the windows to the slid-
ing glass doors of certain Transit Connect vehicles with
tape to increase the ease of removal by the port processers,”
but ultimately did not adopt this feature. J.A. 5553 (em-
phasis added) (citation omitted).
26 FORD MOTOR COMPANY v. UNITED STATES
which defines the class,” “the expectation of the ultimate
purchasers,” and “the environment of the sale, such as ac-
companying accessories and the manner in which the mer-
chandise is advertised and displayed.” Aromont, 671 F.3d
at 1313. 10 Regarding general physical characteristics, we
explained above that, whereas the structural design fea-
tures align with a passenger vehicle, the auxiliary design
features support the conclusion that the subject merchan-
dise is not designed for passengers. See supra Section
II.B.1–2.
Regarding manner of use and consumer expectations,
the subject merchandise was made to order and, because
the post-importation processing occurred immediately af-
ter entry, it “was delivered to customers as two-seat cargo
vans,” without rear seats, seatbelts, unordered windows,
and second row footwells. J.A. 5555; see J.A. 5548, 5554.
Ford’s market research showed that the “Transit Connect
has little appeal as a personal use vehicle—its industrial
design and austere interior are keys to rejection. Never-
theless, it continues to resonate as a viable commercial ve-
hicle,” to be used for, inter alia, “quick deliveries, pickups,
and service calls.” J.A. 4751. In Carborundum, our prede-
cessor court recognized that imports may be “specially pro-
cessed to provide the import with a utility different from
the class,” 536 F.2d at 377; see Aromont, 671 F.3d at 1313
(“[A]ctual use of the particular imported goods is evidence
of the principal use of the merchandise involved.”), which
is the case here because the Transit Connect 6/7s undergo
10 The other Carborundum factors are: “the economic
practicality of so using the import,” “the channels of trade
in which the merchandise moves,” and “the recognition in
the trade of this use.” Aromont, 671 F.3d at 1313 (citation
omitted). Having considered the record evidence as to
these other factors, we find nothing that alters our conclu-
sion as to the use analysis.
FORD MOTOR COMPANY v. UNITED STATES 27
post-importation processing and are not utilized like pas-
senger vehicles, see J.A. 5554–55; see also HQ H220856,
2013 WL 1793233, at *6 (“The Ford website . . . features
the Transit Connect [6/7]s in use as cargo/delivery vehicles
by businesses such as the Maid Group, Danny Armand’s
Market[,] and Boo Boo Busters . . . .” (emphasis added) (in-
ternal quotation marks omitted)).
Regarding advertising, Ford’s brochures market the
Transit Connect 6/7s as a cargo van, but list the Transit
Connect 9s as passenger vehicles. See J.A. 2798 (listing the
Transit Connect 6/7s (i.e., the Van model) next to the
Transit Connect 9s (i.e., the Wagon model), and advertise
that the Transit Connect 6/7s do not contain passenger
space in the second row but have cargo capacity of “129.6”
cubic feet “[b]ehind [the] first-row seat,” whereas the
Transit Connect 9s have “67.1” cubic feet of passenger
space in the second row but no cargo space behind “[b]ehind
[the] first-row seat”), 2816 (highlighting that all Transit
Connects have “[s]erious payload and GVWR capacity”),
2818 (advertising only “driver and front passenger” seats
in the Transit Connect 6/7s), 2820 (providing “optional
equipment” and stating “premium carpeted floor mats” for
“rear passenger area” are “not available” as an option for
the Transit Connect 6/7s, but are “optional” in the Transit
Connect 9s (capitalization modified)), 2824 (marketing that
Transit Connect 6/7s “provide up to 129.6 cubic feet of max-
imum cargo capacity” (emphasis added)). The Transit Con-
nect 6/7s’ use weighs heavily against classification under
HTSUS Heading 8703. Accordingly, the Carborundum fac-
tors support the conclusion that the subject merchandise is
not classifiable under HTSUS Heading 8703. 11
11 The Government avers that the CIT erred in clas-
sifying Ford’s subject merchandise under HTSUS Heading
8703 because Ford’s installation of the CRSV-2 seats con-
stituted “a disguise or artifice.” Appellant’s Br. 26
28 FORD MOTOR COMPANY v. UNITED STATES
C. The Subject Merchandise Is Properly Classified Under
HTSUS Heading 8704
In evaluating the competing headings, the CIT held,
“having found that the subject merchandise is classifiable
under [HTSUS H]eading 8703, [it] need not determine
whether the subject merchandise is also classifiable under
[HTSUS H]eading 8704” because HTSUS Heading 8703 is
more specific. Ford, 254 F. Supp. 3d at 1332 n.64; see id.
at 1316. The CIT, however, recognized that, “if the Transit
Connect 6/7 is not classifiable under [HTSUS H]eading
8703, it falls within [HTSUS H]eading 8704.” Id. (footnote
omitted). The Government argues that the Transit “Con-
nect 6/7 should be classified as a cargo vehicle under
[HTSUS] Heading 8704.” Appellant’s Br. 35 (capitaliza-
tion modified). We agree with the Government.
We begin by determining whether HTSUS Heading
8704 is an “eo nomine or use provision[].” Schlumberger,
845 F.3d at 1164 (citations omitted). Principal use provi-
sions are governed by ARI 1(a), and a principal use “analy-
sis involves determining the use which exceeds any other
single use of the merchandise in the United States.” R.T.
Foods, 757 F.3d at 1355 (internal quotation marks and ci-
tation omitted). HTSUS Heading 8704, which covers
“[m]otor vehicles for the transport of goods,” HTSUS Head-
ing 8704 (emphasis added), is a principal use provision be-
cause the heading identifies the chief use of the covered
merchandise as of a kind used to transport goods, cf. Arom-
ont, 671 F.3d at 1312 (finding “preparations therefor” is a
(internal quotation marks omitted). Because we conclude
that the CIT erred in classifying the subject merchandise
under HTSUS Heading 8703 by applying an improper legal
analysis, we need not address the Government’s alterna-
tive theory. See NTN Bearing Corp. v. United States, 74
F.3d 1204, 1209 n.4 (Fed. Cir. 1995) (declining to address
an alternative argument).
FORD MOTOR COMPANY v. UNITED STATES 29
“principal use provision” because it identified preparations
primarily used for soups and broths); BenQ, 646 F.3d at
1374 (recognizing that a principal use analysis governs,
where a chapter note clarified that a heading covered
“unit . . . of a kind solely or principally used in an auto-
matic data processing system”).
As discussed above, the balance of the Carborundum
factors demonstrate that the made-to-order Transit Con-
nect 6/7s are principally (if not exclusively) used for the
transport of goods, rather than passengers. See supra Sec-
tion II.B.3. The design features demonstrate the subject
merchandise is “tailored to meet the specific needs of” con-
sumers seeking to transport goods. United States v. Border
Brokerage Co., 706 F.2d 1579, 1582 (Fed. Cir. 1983). Thus,
classification under HTSUS Heading 8704 is appropriate.
D. The Correct Subheading for the Subject Merchandise
Is HTSUS Subheading 8704.31.00
Having determined that the subject merchandise is
properly classified under HTSUS Heading 8704, we now
turn to GRI 6, which governs classification at the subhead-
ing level. See Orlando Food, 140 F.3d at 1442. At the
sixth-digit subheading level, the subject merchandise is not
described by HTSUS Subheading 8704.10, which provides
“[d]umpers designed for off-highway use,” as there is no ev-
idence that Transit Connect 6/7s are designed for trans-
porting excavated materials. See EN, Heading 8704,
HTSUS (explaining that dumpers are “sturdily built vehi-
cles with a tipping or bottom opening body, designed for the
transport of excavated or other materials”). HTSUS Head-
ing 8704 is then divided into three categories: (1) HTSUS
Subheadings 8704.21, 8704.22, and 8704.23, which cover
“[o]ther [than dumpers designed for off-highway use], with
compression-ignition internal combustion piston engine
(diesel or semi-diesel),” (2) HTSUS Subheadings 8704.31
and 8704.32, which cover “[o]ther [than dumpers designed
for off-highway use], with spark-ignition internal
30 FORD MOTOR COMPANY v. UNITED STATES
combustion piston engine,” and (3) HTSUS Subheading
8704.90, which covers “[o]ther.” See Rollerblade, Inc. v.
United States, 282 F.3d 1349, 1354 (Fed. Cir. 2002) (hold-
ing that, where merchandise is properly classified under a
particular heading, but does not fall within a specific sub-
heading, it is properly classified under the relevant head-
ing’s “basket” or “catch-all” provision). Because the subject
merchandise has “a spark-ignition internal combustion re-
ciprocating piston engine,” J.A. 4845, it is covered by the
internal combustion piston engine description that applies
to both HTSUS Subheadings 8704.31 and 8704.32. HTSUS
Subheading 8704.31 covers merchandise with a “[GVWR]
not exceeding [five] metric tons,” while HTSUS Subhead-
ing 8704.32 covers merchandise with a “[GVWR] exceeding
[five] metric tons.” The subject merchandise has a GVWR
of 5,005 pounds, J.A. 5945, which is less than five metric
tons, see J.A. 1308 (stating, in a Customs opinion, that a
GVWR of 5,005 pounds “converts to 2.27 metric tons”).
Therefore, the subject merchandise falls under HTSUS
Subheading 8704.31, and, because there is only one eighth-
digit level designation under this subheading, we hold the
subject merchandise is properly classified under HTSUS
Subheading 8704.31.00.
CONCLUSION
We have considered Ford’s remaining arguments and
find them unpersuasive. 12 Accordingly, the Judgment of
12 Inter alia, Ford argues in a footnote that “[t]he CIT
did not reach Ford’s alternative arguments that classifica-
tion under [HTSUS Heading] 8704 is contrary to Customs’
prior treatment and established and uniform practice. If
this [c]ourt does not affirm, it should give the CIT an op-
portunity to address those arguments in the first instance.”
Appellee’s Br. 72 n.8 (citing Ford, 254 F. Supp. 3d at 1333
n.65). “Arguments raised only in footnotes . . . are waived.”
Otsuka Pharm. Co. v. Sandoz, Inc., 678 F.3d 1280, 1294
FORD MOTOR COMPANY v. UNITED STATES 31
the U.S. Court of International Trade is
REVERSED
(Fed. Cir. 2012); cf. Nalco Co. v. Chem-Mod, LLC, 883 F.3d
1337, 1355 (Fed. Cir. 2018). We decline to exercise our dis-
cretion to consider Ford’s argument here, where it fails to
cite any governing law or develop what facts demonstrate
that Customs had an “established and uniform practice.”
Appellee’s Br. 72 n.8; see Mirror Worlds, LLC v. Apple Inc.,
692 F.3d 1351, 1358 (Fed. Cir. 2012) (finding “a passing
reference in a footnote” was insufficient to “preserve the is-
sue for appeal”).