Side Protective Attachment Tariff Provision Not Eo Nomine, US Says
The U.S. supported its cross-motion for judgment (see 2402160055) against an exporter’s reply (see 2404100071) May 29 in a case regarding the classification of automobile side bars. It again pointed out that the bars are principally used as steps, not side protective attachments, and argued that the plaintiffs weren’t engaging with the merits of the case (Keystone Automotive Operations v. U.S., CIT # 21-00215).
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Instead, exporter Keystone Automotive Operations “improperly employs objectionable litigation tactics and accuses us of misleading the Court in our discussion of the record evidence,” it said. It also pointed out that Keystone had filed a reply in support of its own statement of undisputed facts, something not permitted under trade court rules (see 2405290069).
The relevant tariff is principal use provision, not an eo nomine one, the U.S. said. An eo nomine provision, it said, describes a good “by a specific name, usually one common in commerce,” whereas the side protective attachments tariff provision does not, it said. It also said there is no evidence that any member of the automobile industry “uses the generic phrase ‘side protective attachments’ to identify any specific commodity, much less the merchandise at issue.”
However, record evidence does show that Keystone’s bars are commonly described as “truck steps, step bars, steps, side steps, nerf bars with steps, or side bars with steps,” it noted.
Because there is no common industry usage of the term “side protective attachments,” the relevant tariff provision must be a principal use one because the tariffs have been incorporated into the Harmonized Tariff Schedule and are interpreted under its rules, the government said.
Citing to the U.S. Court of Appeals for the Federal Circuit, it added that the phrase “principal use” or “use” doesn’t have to appear in a provision for it to still be a principal use provision.
And it again argued that the principal use of Keystone’s bars is as steps, as demonstrated by the five Carborundum factors. It said the products’ general physical characteristics, ultimate purchasers’ expectations, channels of trade, environment of sale and use all indicate that they are used more as steps to enter a vehicle rather than as vehicle protection.