so the best answer in the government's view is that heading in seventy three is a principle of use provision but it's a special principle yes provision because it doesn't just talk about how the vehicles are used it talks about the vehicles principle design are you aware of other provisions that you use principally designed formulation there's not that many here either and i think this court recognized as much in the western states case you know the western states case itself called out heading in the seventy three has been quite unique and  fact that the heading doesn't say prince sensibly designed for the use of transporting persons it's not very much your honor because you know the court doesn't require congress to specifically use the magic words you use to call out a principle use provision and so you know this wasn't in the briefs but this court has said in various cases such as there are much that even the use of the word for preparations for superstock for example that is sufficient to denominat principal use provision so i wouldn't accord very much significance to the absence what would you say if if ford sold its its product to a dealer intact but with instructions on how to convert the vans in the cargo vans and the dealer then sold cargo pants to the consumers where would you fall on that i don't want to get to answer that question and let me throw in thought supposing that the dealer sell some as cargo management and some of them and the reason that hypothetical is hard and i don't want to get out in front of customers proverbial skis as it were is because i'm everybody makes quite clear we need to look at all of the evidence there's not a lot of evidence other than i guess a couple of sentences in the hyper for me to really evaluate how that would come out but in that hypothetical it's harder on her as i think you know because all of the evidence is pointing in different direction q a hypothetical a little bit more tied to the facts of this case so instead of selling nine  importation service of stripping out all the seats and everything else that made it a passenger van but all that was done post importation and with customs make a difference between those that were sold as passenger vans and those that were sold with the post importation service of stripping it out or would they all be classified as passenger pants because they were at the time they came across the border passenger van so a couple of things are on sept first again assuming that the connect nine is properly class passenger van my understanding based on my conversations with customs is that other auto manufacturers do in fact do that and customs does i fact treat those importations of those vehicles as you know peoples principally designed for the transport of persons even though it's even though one however they're doing the selling in the contract at least the contract documents distinguish between them as passenger and then passenger but with post importation services to transform the cargo rights in the critical difference i think between that hypothetical in this case is that given that fact that a call the vehicles are actually offered to consumers as passenger vans and some of them can actually be used by consumers as passengers and so again as i was saying to just what the evidence of that circumstance points in many different directions the evidence in this case does not and you know perhaps it would help if i could didn't just one more question on that point what would happen here then and i understand for the cell the sixes and sevens that passionate again but assuming that for some reason the sixth and seventh are substantially cheaper than the nine it's if somebody was on it being contracted with ford and ted i want to buy this is a passenger ban and don't do the post importation stripping out because it even though it's lower level seating it's good enough for me in the contract document showed they're buying it as a passenger b and there is no post importation processing would that be a passenger ban again your honor it's hard to say and the reason it's hard to say is we need to see what percentage of the vehicles are you know purchased for use as passenger brand what percentage are purchased not in that hypothetical it seems as if only some people might be using the vehicle as cargo vans and the vast majority of people might be using it as a passenger van and so that would be quite relevant in figuring actual preferences by the consumers may not be cranked into determining what it's presumably designed for so i agree your honor that there isn't a precise and medical inquiry but never ben he makes clear that how the vehicle was used by consumers and the expectations of consumers is quite relevant to the inquiry and that's because the court held that the court of international trade and merab any quote carefully applied the proper standards to determine how to classify the  and there the court of international trade took testimony from three principal design engineers about how decide what to appeal to ordinary buyers they walked at evidence of off road use market studies indicating what buyers use the vehicle to do when wanted the vehicle and indeed the judgment took the vehicle and test drives and so when ford says that mary benny requires customs and courts to blinker themselves to all of that evidence that reading of mary betty simply cannot be reconciled with what the court actually held which is all of the it's quite relevant and it's true you're out of that on the margins it's sometimes difficult to figure out you know what a vehicles principally designed to do and you know ask that i can only say that the test is whether  s customs are a deuced no evidence calling into question that the c r s the two is a c and offer no expert opinion regarding the nature of a seat and then they say ford in contrast introduced evidence that it was designed i'm paraphrasing through physical testing and engineering judgment to be a safe unusable seat they cite fifteen and sixteen other preferred for that underlying purpose and hasn't challenge whether the seats are or are not safe but customs did point to a lot of evidence indicating that the cost would you see it's version two were not designed for passenger abuse not least because there was an email from a ford design engineer saying you may be wondering why we took all of these things out of the seat don't worry the seat is designed to be scrapped it will not be used and that's quoted in the court of international trade opinion your honor and moreover customs of used evidence that for example they took out four of seven seats back wires which are necessary for comfort i'm interested i'm interested you say you're not contesting that because when i go to the appendix which is your response yes it sure is sort of looks like you're not accepting it nominee provision again the entire battery of evidence needs to be considered but i don't think that's really answering my question i'm giving you a hypothetical with the terror religion it's written differently and it doesn't have the principle ie designed for the transport  classification written that way oh it doesn't it doesn't enter your honor perhaps this answer might help with a different hypothetical suppose eighty seven or three did not say principally designed for the transport person they just said vehicle with four seats right and so fall into your theory that this is an artifice and that it would be in the cargo classification yes or other so i'm assuming that play prophetical you know exact same factors here except seat belts on those insured the transit connect six seventh's would be street legal in case one was sold in its condition is an order and you cite me to to forty eight fifty six which appears to be to comply to determine whether comply with u s safety standards and then in seventy two of hers that if the cost reduced second row seats were not removed not only would the be iambs be incorrect but so too would the vehicle weight calculations on safety certification now how does that provide the material to support what you say let me separate out two things with our one is the safety of the seat and the other is  certifications but in terms of the process that judge barnett follow here with respect is under speeded facts he took both sides statements and responses and he prepared a draft statement of undisputed facts which he then submitted to the parties and the parties then said yes that's good to go because he gave them the chance to refute them so everything his extensive factual findings based on that and skewed a record were essentially signed off by both sides and to explain that why there is no engineering judgement and physical testing or something called eight point testing which make sure that where the person sits in the seat hasn't changed as a result of any of the cost reductions that were made and so through both engineering judgment and physical testing for status at the scene complies with all federal safety standards and this was a summary judgment the government never produced any evidence to the contrary so yes when we stated it they refused to concede it but they never produced any  or passengers means that if you intend to strip out the passenger features that that's not going to be relevant to that terrifies me i think there are two lines of cases that are relevant here one is merit baiting which construed principly design language to specifically focused on the objective physical features i can play and the other are the cases like citrus and worthington and the other supreme court cases which establish that you look at the condition and has important to assess the proper classification so there are really with rear seats let alone the option to purchase with that temporary cost reduced seated is that correct that's correct is that transit connect nine market alongside the six seven s with the processor to undertake post important import our processing for all the six and seven that's correct or are the if that's so then isn't it true that ford could never sell a transit connect six seven with well we haven't sold the transatlantic six seven three six but we could they were built with the intent that they would be passenger vehicles that could later be converted for cargo use if nobody is going to ride in it why does it have  well because we were seeking to build a passenger vehicle that could be completely street legal and driven as a passenger vehicle we were seeking to build a vehicle that in its condition as imported would be a passenger vehicle and would meet each of the requirements of the explanatory notes which include once let's get evidence in the record do we have that seat actually met us safety standards other than new york glutens internal conclusion you know the uncontested evidence from ford that engineers engineers of judgment are so certified and the absence of any contrary evidence by the united states what it what is all this evidence about putting seats in there and perhaps human compliant with safety standards have to do with principally design when the whole purpose is that the this is going to be ripped out it's never going to be you i mean i think that turns you are on the understand what principally design means whether it means the mean and none of the constructions of more of a need involve that kind of situation that's right and for that he foresaw that this might happen at the time america or until this case came up and for that circumstance or are we look to cases like isn't it a better understanding i know you're going to disagree with this but it seems to me the better understanding even though you go through and cite all these structural features that make you mean it could be a passenger vehicle is that these were specifically designed for stripping out these are cheap seats you went through and reduce them to the bare what you thought were the bare minimum to meet the marigny requirements in the explanatory notes but they were never designed to be passenger seats in actuality they were designed to be stripped out and at the lowest possible cost well you are you're right that i would disagree with that they were designed to the passenger seat so that there be a billet importation would be a passenger vehicle full and when you have seats that were done even though they meet the passenger requirements the vans were designed not for the transport of persons because the seats put in and were intended to be stripped out it's not a post importation decision everything about this fan was designed to be a cargo van and open your i very much disagree with that because i mean the government has described this as if we simply took some seats and bolted it into a cargo  and we've always been open about that that the intent of this was to import a vehicle that met all the standards for a passenger vehicle and then use labor in facilities and united states after importation to convert it for cargo your conversion it was selling scrip out those seeds and said hey don't buy this mom off vehicle it was designed as a passenger vehicle and it's not really a cargo vehicle would you have any beef well we're not selling the vehicle as a passenger vehicle so those kinds of advertisements wouldn't arrive i mean i think the question is first of all is this a vehicle examine its condition as important or do you look to the intent we've always acknowledged that the intent was to convert the vehicle later and we've always acknowledged the reason for that which is to obtain the lower duty we did that our reliance on the decisions say that condition as important is the touchstone for classification analysis but i guess the real question is is condition at importation confined to just the physical characteristics or do we look cars that i get i mean we're looking at the time of the importation and if we were just looking to physical characteristics you have a really strong case but i'd still don't understand why particularly when we're looking at this unique provision that has principally designed for and i mean i think of this just that passenger vehicles you have a slam dunk case because these are you know then it doesn't have any of this because it principly designed for but with explanatory notes are written and the way customs has construed it in every instance other this case is that what designed refers to is not the intended business plan or ultimate sale of the import it is what is the physical design of the vehicle functions does that physical design perform and what capability and suitability does the vehicle have as a result of those functions and that is why not only in western states import did this court reject any looking at subjective intent of the manufacturer subsequent use the explanatory notes are surely in terms of physical design characteristics and no reference to ultimate use or subjective intent and the customer's decisions until this case likewise and the most telling i think is the customs and custom said no none of that matters the only thing that matters is condition as imported because this is an ale not the neighbor vision so even though you intend to turn it into a passenger van and that was uncontested this is classified as eighty seven zero four for the classification analyst i've looked at this throughout the two years prior to the decision here when the wall street journal first came out in the article that whether you're citing did that and i ask you that question right and i i believe the intended to make them passenger vans and maybe were sold as that but at the time of importation there were cargo of em so the docs printer case was completely consistent with what customs did here and that's true for a couple of reasons but one customs didn't take the intent of the importer into account number two customs assessed the vehicle in its condition as imported and its condition is imported there weren't any spaces for passengers and so notwithstanding the fact that there might have been some intent to convert a couple of these printers into passenger vans or a lot of these printers into passenger vans customs came to the conclusion that that intense did not outweigh the fact that the structural and design features of the vehicle so was that were the case where some of them were sold it was one one model and some of them came through and were converted and some of them were still sold as cargo van so i don't know that your honor of the reason i don't is because the sprinter decision if you take a look at it is about a paragraph long and so it's really hard to determine what exactly customs was basing its decision upon but one thing we can know from this printer decision is customs did not say intent is irrelevant customs just said that intent in many circumstances or you know that circumstance it goes back to marketing one type that they are and then offering post importation processing to turn it into a cargo van customs may have a much harder with capturing that gets harder and as