Slip Op. 24-108 

UNITED STATES COURT OF INTERNATIONAL TRADE 

KEYSTONE AUTOMOTIVE 

OPERATIONS, INC., 

Plaintiff, 

v. 

UNITED STATES, 

Defendant. 

Before: Jennifer Choe-Groves, Judge 

Court No. 21-00215 

OPINION AND ORDER 

[Denying both Plaintiff’s and Defendant’s motions for summary judgment and 

ordering a trial in a Customs classification matter.] 

Dated: October 7, 2024 

Eric R. Rock, Michael G. Hodes, and Serhiy Kiyasov, Rock Trade Law, LLC, of 

Chicago, IL, for Plaintiff Keystone Automotive Operations, Inc. Austin J. Eighan 

and Lawrence R. Pilon also appeared. 

Justin R. Miller, Attorney-in-Charge, International Trade Field Office, and 

Brandon A. Kennedy, Trial Attorney, Commercial Litigation Branch, Civil 

Division, U.S. Department of Justice, of New York, N.Y. With them on the brief 

were Brian M. Boynton, Principal Deputy Assistant Attorney General, and Patricia 

M. McCarthy, Director. Of Counsel was Valerie Sorensen-Clark, General 

Attorney, Office of the Assistant Chief Counsel for International Trade Litigation, 

U.S. Customs and Border Protection, of New York, N.Y. Alexandra Khrebtukova 

also appeared.

Choe-Groves, Judge: This case addresses whether various side bars, nerf 

bars, and bars (collectively “subject merchandise”) attached to motor vehicles are 
Court No. 21-00215 Page 2 

considered “side protective attachments” as described in U.S. Note 20(iii)(213) to 

Subchapter III of Chapter 99 of the Harmonized Tariff Schedule of the United 

States (“HTSUS”) and are therefore excluded from a 25% ad valorem rate of duty 

applied to various products imported from the People’s Republic of China 

(“China”). See Notice of Product Exclusion Extensions, 85 Fed. Reg. 48,600 

(USTR Aug. 11, 2020) (China’s acts, policies, and practices related to technology 

transfer, intellectual property, and innovation); U.S. Note 20(iii)(213), Subchapter 

III, Chapter 99, HTSUS. 

Before the Court are cross-motions for summary judgment. Pl.’s Mot. 

Summ. J. & Mem. Law Supp. Pl.’s Mot. Summ. J. (Dec. 7, 2023) (“Pl.’s Br.”), 

ECF Nos. 48, 49; Def.’s Cross-Mot. Summ. J. & Mem. Law Supp. & Opp’n Pl.’s 

Mot. Summ. J. (Feb. 16, 2024) (“Def.’s Br.”), ECF Nos. 50, 51. 

Keystone Automotive Operations, Inc. (“Plaintiff” or “Keystone”) argues 

that the subject merchandise are subject to the exclusion from the 25% ad valorem

rate of duty because they meet the description of “side protective attachments” that 

are made of steel, were entered into the United States for consumption within the 

timeframe provided in the exclusion notice, and were properly classified under tendigit HTSUS subheading 8708.29.5060. Pl.’s Br. at ௅. 

The Government counters that the subject merchandise do not meet the 

exclusion’s description of “side protective attachments” made of steel because all 
Court No. 21-00215 Page 3 

of Keystone’s imported products consist of rubberized plastic steps mounted on 

steel bars that attach to the sides of vehicles and whose primary function and use is 

assisting an individual in entering and exiting a high road clearance vehicle by 

using the step pads. Def.’s Br. at 13௅27. 

For the reasons that follow, the Court denies both Plaintiff’s and Defendant’s 

cross-motions for summary judgment and will schedule a bench trial forthwith. 

ISSUE PRESENTED 

Whether the subject merchandise meet the description of “side protective 

attachments” in U.S. Note 20(iii)(213) to Subchapter III of Chapter 99 of the 

HTSUS and are subject to an exclusion from the 25% ad valorem rate of duty. 

UNDISPUTED FACTS 

Pursuant to USCIT Rule 56.3, Plaintiff and Defendant submitted separate 

statements of material facts and responses. Pl.’s Statement Undisputed Facts (Dec. 

7, 2023) (“Pl.’s Facts”), ECF Nos. 48-1, 49-1; Def.’s Resp. Pl.’s Statement 

Undisputed Facts (Feb. 16, 2024) (“Def.’s Resp. Pl.’s Facts”), ECF Nos. 50-2, 51-

2; Def.’s Statement Material Facts (Feb. 16, 2024) (“Def.’s Facts”), ECF Nos. 50-

1, 51-1; Pl.’s Resp. Def.’s Statement Material Facts (Apr. 8, 2024) (“Pl.’s Resp. 

Def.’s Facts”), ECF Nos. 53-1, 54-1; Pl.’s Reply Def.’s Resp. Pl.’s Statement 

Undisputed Facts (Apr. 8, 2024) (“Pl.’s Reply”), ECF Nos. 53-2, 54-2. The 

following facts are not in dispute. 
Court No. 21-00215 Page 4 

I. Procedural History 

Plaintiff’s import of the subject merchandise from China entered the United 

States through the Port of Newark, New Jersey, in November 2020. Pl.’s Facts ¶ 4; 

Def.’s Resp. Pl.’s Facts ¶ 4; Protest No. 4601-21-126305, ECF No. 9-1. The U.S. 

Customs and Border Protection (“Customs”) liquidated the subject merchandise 

with a duty rate increase of 25% ad valorem under ten-digit HTSUS subheading 

8708.29.5060 and HTSUS heading 9903.88.03 on February 5, 2021. Pl.’s Facts ¶ 

5; Def.’s Resp. Pl.’s Facts ¶ 5; Protest No. 4601-21-126305. Customs reliquidated 

the subject merchandise on February 19, 2021. Pl.’s Facts ¶ 6; Def.’s Resp. Pl.’s 

Facts ¶ 6; Compl. ¶ 21, ECF. No. 10; Ans. ¶ 21, ECF No. 17. The subject 

merchandise were properly classified under ten-digit HTSUS subheading 

8708.29.5060. Pl.’s Facts ¶ 21; Def.’s Resp. Pl.’s Facts ¶ 21. 

Plaintiff filed a timely protest challenging Customs’ classification of the 

subject merchandise under HTSUS heading 9903.88.03 on March 9, 2021. Pl.’s 

Facts ¶ 7; Def.’s Resp. Pl.’s Facts ¶ 7; Protest No. 4601-21-126305. Keystone’s 

protest was deemed denied by operation of law on April 8, 2021. Pl.’s Facts ¶ 8; 

Def.’s Resp. Pl.’s Facts ¶ 8; Compl. ¶ 4; Ans. ¶ 4. Keystone paid all duties, 

charges, and exactions assessed at liquidation pertaining to the subject 

merchandise. Pl.’s Facts ¶ 10; Def.’s Resp. Pl.’s Facts ¶ 10; Compl. ¶ 6. Plaintiff 

timely filed this action within 180 days of the protest being deemed denied. Pl.’s 
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Facts ¶ 9; Def.’s Resp. Pl.’s Facts ¶ 9. The matter was subsequently designated as 

a test case. Order (Dec. 20, 2021), ECF No. 22. The Court held oral argument on 

July 26, 2024. Oral Arg. (July 26, 2024), ECF No. 66. 

II. Description of Subject Merchandise 

The subject merchandise consist of various side bars, nerf bars, and bars 

designed for motor vehicles and come in various lengths of stainless-steel tubes 

between 53.15 inches and 125.2 inches, either straight or curved at each end, in 

widths between 4.02 inches and 13.23 inches, with or without welded end caps. 

Pl.’s Facts ¶¶ 11௅12; Def.’s Resp. Pl.’s Facts ¶¶ 11௅12. The subject merchandise 

have mounting backets and fasteners and are usually purchased by an end-user of a 

vehicle as pieces of after-market equipment. Pl.’s Facts ¶¶ 13, 15; Def.’s Resp. 

Pl.’s Facts ¶¶ 13, 15. The vehicles on which the subject merchandise are generally 

attached to are pick-up trucks, Jeeps, and off-road vehicles. Pl.’s Facts ¶ 16; Def.’s 

Resp. Pl.’s Facts ¶ 16. On such vehicles, the subject merchandise are attached to 

the frames on either side and serve as lowered steps that make it easier to get in 

and out of lifted vehicles and wipe dirt off shoes. Pl.’s Facts ¶¶ 16, 19; Def.’s 

Resp. Pl.’s Facts ¶¶ 16, 19; Def.’s Facts ¶¶ ௅4௅; Pl.’s Resp. Def.’s Facts ¶¶ ௅

4௅. 

The subject merchandise have a sleek and stylish look and provide a degree 

of protection against stone pecking, road hazards, road debris, side impact, and 
Court No. 21-00215 Page 6 

collisions with shopping carts and other objects. Pl.’s Facts ¶ 18; Def.’s Resp. Pl.’s 

Facts ¶ 18; Def.’s Facts ¶௅; Pl.’s Resp. Def.’s Facts ¶¶ ௅. All models of 

the subject merchandise contain plastic step features that allow users to use the 

subject merchandise as step-ups into the vehicle. Pl.’s Facts ¶ 19; Def.’s Resp. 

Pl.’s Facts ¶ 19. 

Plaintiff’s imported products, including the subject merchandise, are sold 

online through various websites and in physical retail locations and showrooms. 

Def.’s Facts ¶ 27; Pl.’s Resp. Def.’s Facts ¶ 27. Plaintiff is responsible for a 

Facebook page for TrailFX products, which include the subject merchandise. 

Def.’s Facts ¶ 19; Pl.’s Resp. Def.’s Facts ¶ 19. Plaintiff’s customers are able to 

access Keystone’s online product pages to read the product descriptions, refer to 

the product pictures, and decide if they want to purchase the products. Def.’s Facts 

¶ 17; Pl.’s Resp. Def.’s Facts ¶ 17. Plaintiff does not have any specific data or 

metrics showing the percentage of customers who use the subject merchandise in a 

certain manner or how often the customers use the subject merchandise. Def.’s 

Facts ¶ 26; Pl.’s Resp. Def.’s Facts ¶ 26. For example, Defendant highlighted that 

the A&A Auto Store’s website sells products like the subject merchandise, nerf 

bars, and steps in the category of exterior products, but does not sell them in the 

“vehicle protection” subcategory of the exterior products category. Def.’s Facts ¶¶ 

௅30; Pl.’s Resp. Def.’s Facts ¶¶ ௅30. 
Court No. 21-00215 Page 7 

JURISDICTION AND STANDARD OF REVIEW 

The Court has jurisdiction pursuant to 28 U.S.C. § 1581(a). The Court 

reviews classification cases de novo. Cont’l Auto. Sys., Inc., v. United States, 46 

CIT __, __, 589 F. Supp. 3d 1215, 1220 (2022); 28 U.S.C. § 2640(a)(1); Telebrands 

Corp. v. United States, 36 CIT 1231, 1234, 865 F. Supp. 2d 1277, 1279௅80 (2012). 

The Court will grant summary judgment if “the movant shows that there is 

no genuine dispute as to any material fact and the movant is entitled to judgment as 

a matter of law.” USCIT R. 56(a). To raise a genuine issue of material fact, a party 

cannot rest upon mere allegations or denials and must point to sufficient supporting 

evidence for the claimed factual dispute to require resolution of the differing 

versions of the truth at trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248–

49 (1986); Processed Plastics Co. v. United States, 473 F.3d 1164, 1170 (Fed. Cir. 

2006); Barmag Barmer Maschinenfabrik AG v. Murata Mach., Ltd., 731 F.2d 831, 

835–36 (Fed. Cir. 1984). 

DISCUSSION 

I. Legal Framework 

In a tariff classification dispute, “the court first considers whether ‘the 

government’s classification is correct, both independently and in comparison with 

the importer’s alternative.’” Shamrock Bldg. Materials, Inc. v. United States, 47 

CIT __, __, 619 F. Supp. 3d 1337, 1342 (2023) (quoting Jarvis Clark Co. v. United 
Court No. 21-00215 Page 8 

States, 733 F.2d 873, 878 (Fed. Cir. 1984)). The plaintiff has the burden of 

demonstrating that the government’s classification is incorrect. Jarvis Clark, 733 

F.2d at 876. Independent of the arguments presented, the Court has a statutory 

mandate to “reach a correct result.” Id. at 878; see 28 U.S.C. § 2643(b). 

A two-step process guides the Court in determining the correct classification 

of merchandise. Ford Motor Co. v. United States, 926 F.3d 741, 748 (Fed. Cir. 

2019) (citing ADC Telecomms., Inc. v. United States, 916 F.3d 1013, 1017 (Fed. 

Cir. 2019)). First, the Court ascertains the proper meaning of the terms in the tariff 

provision. Schlumberger Tech. Corp. v. United States, 845 F.3d 1158, 1162 (Fed. 

Cir. 2017) (citing Sigma-Tau HealthScience, Inc. v. United States, 838 F.3d 1272, 

1276 (Fed. Cir. 2016)). Second, the Court determines whether the merchandise at 

issue falls within the terms of the tariff provision. Id. The former is a question of 

law, which the Court reviews de novo, and the latter is a question of fact, which the 

Court reviews for clear error. Id. “[W]hen there is no dispute as to the nature of 

the merchandise, then the two-step classification analysis ‘collapses entirely into a 

question of law.’” Link Snacks, Inc. v. United States, 742 F.3d 962, 965–66 (Fed. 

Cir. 2014) (quoting Cummins Inc. v. United States, 454 F.3d 1361, 1363 (Fed. Cir. 

2006)). 

The classification of merchandise under the HTSUS is governed by the 

General Rules of Interpretation (“GRIs”) and, if applicable, the Additional U.S. 
Court No. 21-00215 Page 9 

Rules of Interpretation (“ARIs”), which are both applied in numerical order. BenQ 

Am. Corp. v. United States, 646 F.3d 1371, 1376 (Fed. Cir. 2011) (citing N. Am. 

Processing Co. v. United States, 236 F.3d 695, 698 (Fed. Cir. 2001)). GRI 1 

instructs that, “for legal purposes, classification shall be determined according to 

the terms of the headings and any relative section or chapter notes.” GRI 1. 

“Absent contrary legislative intent, HTSUS terms are to be ‘construed [according] 

to their common and popular meaning.’” Baxter Healthcare Corp. of P.R. v. 

United States, 182 F.3d 1333, 1337 (Fed. Cir. 1999) (alteration in original) 

(quoting Marubeni Am. Corp. v. United States, 35 F.3d 530, 534 (Fed. Cir. 1994)). 

Chapter 99 of the HTSUS includes U.S. Notes, which are enacted by 

Congress or proclaimed by the President. See, e.g., Maple Leaf Mktg., Inc. v. 

United States, 45 CIT __, __, 528 F. Supp. 3d 1365, 1370 (2021) (“The President 

implemented the tariffs by modifying Subchapter III of Chapter 99 of the 

Harmonized Tariff Schedule of the United States (‘HTSUS’) to add a new note and 

a new tariff provision under the heading 9903.80.01.”). “Unless the context 

requires otherwise, the general notes and rules of interpretation, the section notes, 

and the [chapter notes]” apply to Chapter 99. U.S. Note 2, Subchapter III, Chapter 

99, HTSUS. Generally, these Notes only relate to specific headings at the eightdigit level, so they are “not binding for determining prima facie classifiability,” but 
Court No. 21-00215 Page 10 

they are “persuasive as to what Congress intended.” Sarne Handbags Corp. v. 

United States, 24 CIT 309, 317–18 (2000). 

In construing the terms of the headings, the Court “may rely upon its own 

understanding of the terms used and may consult lexicographic and scientific 

authorities, dictionaries, and other reliable information sources.” Carl Zeiss, Inc. v. 

United States, 195 F.3d 1375, 1379 (Fed. Cir. 1999) (citing Baxter Healthcare 

Corp. of P.R., 182 F.3d at 1337–38)). The Court may also consult the Harmonized 

Commodity Description and Coding System’s Explanatory Notes (“Explanatory 

Notes”), which “are not legally binding or dispositive,” Kahrs Int’l, Inc. v. United 

States, 713 F.3d 640, 645 (Fed. Cir. 2013), but “provide a commentary on the 

scope of each heading of the Harmonized System” and are “generally indicative of 

proper interpretation of the various provisions.” H.R. Rep. No. 100–576, 549 

(1988), reprinted in 1988 U.S.C.C.A.N. 1547, 1582; see also E.T. Horn Co. v. 

United States, 367 F.3d 1326, 1329 (Fed. Cir. 2004). Tariff terms are defined 

according to the language of the headings, the relevant section and chapter notes, 

the Explanatory Notes, available lexicographic sources, and other reliable sources 

of information. 

II. Relevant HTSUS Headings and U.S. Note 20(iii)(213) 

Effective September 24, 2018, the Office of the United States Trade 

Representative (“USTR”) “imposed additional duties on goods of China with an 
Court No. 21-00215 Page 11 

annual trade value of approximately $200 billion as part of the Section 301 

investigation of China’s acts, policies, and practices related to technology transfer, 

intellectual property, and innovation.” Notice of Product Exclusion Extensions, 85 

Fed. Reg. at 48,600. Relevant to this case are goods classifiable under HTSUS 

heading 9903.88.03, which covers “articles the product of China, as provided for in 

U.S. note 20(e) to this subchapter and as provided for in the subheadings 

enumerated in U.S. note 20(f)” except the goods covered in, among others, HTSUS 

heading 9903.88.56. Heading 9903.88.03, HTSUS. 

U.S. Note 20(e) provides that: 

For the purposes of heading 9903.88.03, products of China, as provided 

for in this note, shall be subject to an additional 25 percent ad valorem 

rate of duty. The products of China that are subject to an additional 25 

percent ad valorem rate of duty under heading 9903.88.03 are products 

of China that are classified in the subheadings enumerated in U.S. note 

20(f) to subchapter III. All products of China that are classified in the 

subheadings enumerated in U.S. note 20(f) to subchapter III are subject 

to the additional 25 percent ad valorem rate of duty imposed by heading 

9903.88.03, except products of China granted an exclusion by the U.S. 

Trade Representative and provided for in . . . (15) heading 9903.88.56 

and U.S. note 20(iii) to subchapter III of chapter 99. 

U.S. Note 20(e), Subchapter III, Chapter 99, HTSUS. U.S. Note 20(f) states that 

“[h]eading 9903.88.03 applies to all products of China that are classified in the 

following 8-digit subheadings, except products of China granted an exclusion by 

the U.S. Trade Representative and provided for in . . . heading 9903.88.56 and U.S. 
Court No. 21-00215 Page 12 

note 20(iii) to subchapter III of chapter 99.” U.S. Note 20(f), Subchapter III, 

Chapter 99, HTSUS. 

On August 11, 2020, the USTR issued a Federal Register Notice stating that 

certain products from China would be excluded from the 25% ad valorem rate of 

duty imposed on goods from China classified under 5,757 full and partial 

subheadings of the HTSUS. Notice of Product Exclusion, 85 Fed. Reg. at 48,601. 

Each exclusion was governed by the scope of ten-digit HTSUS subheadings, and 

the accompanying product descriptions were provided in Annexes for Extensions 

of Certain Product Exclusions from Tranche 3. Id. Subchapter III to Chapter 99 of 

the HTSUS was modified by inserting heading 9903.88.56, which was “[e]ffective 

with respect to entries on or after August 7, 2020, and through December 31, 2020, 

articles the product of China, as provided for in U.S. note 20(iii) to [Subchapter 

III], each covered by an exclusion granted by the U.S. Trade Representative.” 

Heading 9903.88.56, HTSUS. 

At issue in this case is U.S. Note 20(iii) to Subchapter III of Chapter 99 of 

the HTSUS, which provides that: 

The U.S. Trade Representative determined to establish a process by 

which particular products classified in heading 9903.88.03 and 

provided for in U.S. notes 20(e) and 20(f) to this subchapter could be 

excluded from the additional duties imposed by heading 9903.88.03. 

See 83 Fed. Reg. 47974 (September 21, 2018) and 84 Fed. Reg. 29576 

(June 24, 2019). Pursuant to the product exclusion process, the U.S. 

Trade Representative has determined that, as provided in heading 
Court No. 21-00215 Page 13 

9903.88.56, the additional duties provided for in heading 9903.88.03 

shall not apply to the following particular products . . . : 

 . . . 

(213) Tire carrier attachments, roof racks, fender liners, side 

protective attachments, the foregoing of steel (described in 

statistical reporting number 8708.29.5060). 

U.S. Note 20(iii)(213), Subchapter III, Chapter 99, HTSUS. 

HTSUS subheading 8708.29.5060 covers: 

8708 Parts and accessories of the motor vehicles of headings 8701 to 8705: 

8708.29 Other: 

8708.29.50 Other: 

8708.29.5060 Other 

Subheading 8708.29.5060, HTSUS. The Parties do not dispute that the subject 

merchandise are classifiable under the ten-digit HTSUS subheading 8708.29.5060. 

See Pl.’s Facts ¶ 21; Def.’s Resp. Pl.’s Facts ¶ 21. 

III. Analysis of “Side Protective Attachments” as Used in U.S. Note 

20(iii)(213) 

A. Whether “Side Protective Attachments” is a Principal Use 

Provision 

As noted previously, the Court first considers whether the Government’s 

classification of the subject merchandise is correct, both independently and 

compared to the importer’s alternative. See Shamrock Bldg. Materials, 619 F. 

Supp. 3d 1342; Jarvis Clark, 733 F.2d at 876. Thus, the Court must assess initially 
Court No. 21-00215 Page 14 

whether U.S. Note 20(iii) to Subchapter III of Chapter 99 of the HTSUS is a use 

provision as alleged by the Government or an eo nomine provision as alleged by 

Plaintiff. 

An eo nomine provision describes articles by specific names. S.C. Johnson 

& Son Inc. v. United States, 999 F.3d 1382, 1388 (Fed. Cir. 2021) (citing 

Schlumberger Tech Corp., 845 F.3d at 1164)). A principal use provision classifies 

articles based on their principal or actual use. Schlumberger Tech Corp., 845 F.3d 

at 1164; see also R.T. Foods, Inc. v. United States, 757 F.3d 1349, 1355 (Fed. Cir. 

2014). 

Defendant contends in its cross-motion for summary judgment that U.S. 

Note 20(iii) is a principal use provision. Def.’s Br. at 13–14. Defendant asserts 

that “side protective attachments” should be understood as a principal use 

provision because the phrase “side protective attachments” does not describe a 

product by a specific name that is common in commerce, which Defendant argues 

would be indicative of an eo nomine provision. Id. at 14. 

Plaintiff argues, on the contrary, that U.S. Note 20(iii) is not a principal use 

provision because “conditioning an exclusion on some additional characteristic or 

criterion that is not part of the exclusion’s description—such as principal use—will 

result in a limitation that is not provided for and not intended by the drafters of the 

exclusion language.” Pl.’s Resp. Def.’s Cross-Mot. Summ. J. & Reply Further 
Court No. 21-00215 Page 15 

Supp. Pl.’s Mot. Summ. J. (Apr. 8, 2024) (“Pl.’s Resp. Br.”) at 12, ECF Nos. 53, 

54. Plaintiff asserts that U.S. Note 20(iii) should be treated as an eo nomine

provision and that the subject merchandise are classifiable as “side protective 

attachments” because the products are made of steel, attach to motor vehicles, and 

protect the sides of the vehicle. Pl.’s Br. at 13–16; Pl.’s Resp. Br. at 11–20. 

A principal use provision does not need to expressly use the words “used 

for.” S.C. Johnson & Son Inc., 999 F.3d at 1389 (citation omitted). Generic terms 

that are preceded by an adjective that suggests a manner of use can constitute a 

principal use provision. Id. (citing Stewart-Warner Corp. v. United States, 748 

F.2d 663, 667 (Fed. Cir. 1984)). 

ARI 1(a), which governs use provisions, provides that: 

1. In the absence of special language or context which otherwise 

requires— 

(a) a tariff classification controlled by use (other than actual 

use) is to be determined in accordance with the use in the 

United States at, or immediately prior to, the date of 

importation, of goods of that class or kind to which the 

imported goods belong, and the controlling use is the 

principal use[.] 

ARI 1(a). Principal use “has been defined as the use ‘which exceeds any other 

single use.’” Aromont USA, Inc. v. United States, 671 F.3d 1310, 1312 (Fed. Cir. 

2012) (emphasis omitted) (quoting Lenox Collections v. United States, 20 CIT 194, 

196 (1996)). 
Court No. 21-00215 Page 16 

The relevant provision at issue is “side protective attachments, the foregoing 

of steel.” U.S. Note 20(iii)(213), Subchapter III, Chapter 99, HTSUS. This 

provision contains two adjectives, “side” and “protective,” which modify the noun 

“attachments.” Although the term “protective” is an adjective, in the context of 

“side protective attachments,” 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. See Stewart-Warner Corp., 748 F.2d at 667 (explaining 

that employing a term to modify another generic term “compels one to consider 

some aspect of use” as opposed to using a “purely descriptive” term). 

The Oxford English Dictionary defines “protective” as “[h]aving the quality, 

character, or effect of protecting someone or something; preservative; defensive.” 

Protective, OXFORD ENGLISH DICTIONARY (2d ed. revised 2007). This dictionary 

definition is informative and leads the Court to conclude that the phrase “side 

protective attachments” inherently suggests use because the phrase connotes that 

an attachment that is described by U.S. Note 20(iii) is an article that protects the 

vehicle on the side on which it is attached. See U.S. Note 20(iii)(213), Subchapter 

III, Chapter 99, HTSUS. The Court agrees with Defendant that “something that is 

‘protective’ is something whose use or function is to provide protection, i.e., 

covering or shielding something from exposure, injury, damage, or destruction.” 

Def.’s Reply Mem. Further Supp. Cross-Mot. Summ. J. (“Def.’s Reply Br.”) (May 
Court No. 21-00215 Page 17 

29, 2014) at 8, ECF Nos. 56, 57. In other words, the attachment on the side must 

be used to protect the vehicle, and the adjective “protective” suggests a manner of 

use constituting a principal use provision. See S.C. Johnson & Son Inc., 999 F.3d 

at 1389. 

As an aside, the Court concludes that “side protective attachments” does not 

require that only the side of the vehicle must be protected (as opposed to, for 

example, the bottom or other parts of the vehicle being protected). If the provision 

were intended to require only the protection of the side of the vehicle, the language 

would presumably have been written as “side-protective attachments,” which 

would have indicated a more specific intention of protecting the side of the vehicle. 

Because the two adjectives “side” and “protective” are not written as one 

combined term, the Court concludes that a less specific meaning was intended, that 

the attachment would be located on the side of the vehicle, and must be used in a 

protective manner. 

The Court concludes that the term “side protective attachments” in U.S. 

Note 20(iii)(213) to Subchapter III of Chapter 99 of the HTSUS is a principal use 

provision. The Court construes the tariff provision “side protective attachments” 

under ARI 1 to mean steel products that are attached to the side of a vehicle and are 

used to protect the vehicle. 
Court No. 21-00215 Page 18 

B. Whether “Side Protective Attachments” is an Eo Nomine

Provision 

Notwithstanding the Court’s conclusion that the tariff provision at issue is a 

principal use provision as alleged by Defendant, the Court also considers whether 

the tariff provision is an eo nomine provision as alleged by Plaintiff. An eo nomine

provision describes articles by specific names and includes all forms of the named 

article, even the article’s improved forms. Ford Motor Co., 926 F.3d at 750; see 

Schlumberger Tech Corp., 845 F.3d at 1164; see, e.g., Otter Prods., LLC v. United 

States)G௅)HG&LUconcluding that HSTUS heading 

4202 is an eo nomine provision that described articles by their specific names 

because HTSUS heading 4202 covers, among other things “[t]runks, suitcases, 

vanity cases, attache cases, briefcases, school satchels, spectacle cases, binocular 

cases, camera cases, musical instrument cases, gun cases, holsters, and similar 

containers”). 

U.S. Note 20(iii)(213) to Subchapter III of Chapter 99 of the HTSUS lists 

“side protective attachments” as products that are excluded from the 25% ad 

valorem rate of duty. U.S. Note 20(iii)(213), Subchapter III, Chapter 99, HTSUS. 

The Court observes that the term “side protective attachments” as it is used in U.S. 

Note 20(iii)(213) does not refer to the specific name of products. As discussed at 
Court No. 21-00215 Page 19

oral argument, there are no products called “side protective attachments.” Oral 

Arg. Tr. (“Oral Arg.”) at 19:16–20:8, 52:2–4, 57:17–24, ECF No. 67. 

Relevant to this analysis, the Court observes that Polaris Inc. (not a party to 

this litigation) submitted the original request for an exclusion from Section 301 

tariffs to USTR for parts used in the manufacture, repair, and service of 

powersports vehicles, including Polaris’ “Smittybilt side armor” products. Compl. 

Ex. A. In response, USTR granted an exclusion to Polaris. Rather than using the 

phrase “side armor” or another term for Polaris’ products, however, USTR 

included the term “side protective attachments” in U.S. Note 20(iii) to cover 

Polaris’ “side armor” products. Plaintiff argues that its nerf bars, side bars, and 

bars are similar to Polaris’ Smittybilt side armor products, and therefore should be 

treated as excluded “side protective attachments” under U.S. Note 20(iii). 

The following are examples of Plaintiff’s products: 
Court No. 21-00215 Page 20 

Pl.’s Br. Ex. B-1 at 37, 55. 

Plaintiff admitted at oral argument that its products are not called “side 

protective attachments,” but suggested that the phrase is a description of a class or 

kind of good that are attached to the side of a vehicle. See Oral Arg. at 19:16–20:8. 

The Court is persuaded by Defendant’s counterargument that there is no evidence 

on the record that Plaintiff or anyone else in the automotive industry uses the term 

“side protective attachments” in commerce. See Def.’s Reply Br. at 3. Defendant 

also notes that “the evidence in the record shows that the subject merchandise is 

commonly referred to as truck steps, step bars, steps, side steps, nerf bars with 

steps, or side bars with steps.” Id. 

It is well-established that a heading is eo nomine when it describes a 

commodity by a specific name, usually one common in commerce. Orlando Food 

Corp. v. United States, 140 F.3d 1437, 1441 (Fed. Cir. 1998). Because there is no 

evidence on the record establishing that the term “side protective attachments” 

identifies an article or a product by a specific name, or a product common in 

commerce, the Court concludes that “side protective attachments” is not an eo 

nomine provision. 
Court No. 21-00215 Page 21 

C. Whether Plaintiff’s Products are “Side Protective 

Attachments” Under a Principal Use Analysis 

A “principal use” provision is defined as one in which the use “exceeds any 

other single use” in the context of ARI 1(a). Aromont USA, Inc., 671 F.3d at 

1312. Principal use provisions require the Court to determine whether the group of 

goods are “commercially fungible with the imported goods” in order to identify the 

use “which exceeds any other single use.” Id. In analyzing whether the subject 

merchandise in this case are commercially fungible, the Court considers the 

Carborundum factors, which are 

[1] use in the same manner as merchandise which defines the class; [2] 

the general physical characteristics of the merchandise; [3] the 

economic practicality of so using the import; [4] the expectation of the 

ultimate purchasers; [5] the channels of trade in which the merchandise 

moves; [6] the environment of the sale, such as accompanying 

accessories and the manner in which the merchandise is advertised and 

displayed; and [7] the recognition in the trade of this use. 

Id. at 1313 (citing United States v. Carborundum, 63 C.C.P.A. 98, 102, 536 F.2d 

373, 377 (1976)). ARI 1(a) requires examination of the principal use not only of 

Plaintiff’s subject merchandise, but also of all similar merchandise. 

The undisputed facts establish that the subject merchandise have steel and 

plastic characteristics and that they are attached to the frames on either side of a 

motor vehicle. Pl.’s Facts ¶¶ 14, 16, ௅'HI¶V5HVS3O¶V)DFWV16, ௅

20. The undisputed facts demonstrate that the subject merchandise are sold online 
Court No. 21-00215 Page 22 

and that on the A&A Auto Store’s website, the subject merchandise, particularly 

the nerf bars and step bars, are sold under the category of exterior products, but not 

within the “vehicle protection” subcategory of the exterior products category. 

Def.’s Facts ¶¶ ௅3O¶V5HVS'HI¶V)DFWV¶¶ ௅The undisputed facts also 

show that Plaintiff does not have any specific data or metrics showing the manner 

in which Keystone’s customers use the subject merchandise or how often they use 

them in a specific manner or for a specific purpose. Def.’s Facts ¶ 26; Pl.’s Resp. 

Def.’s Facts ¶ 26. 

Although the undisputed facts describe some of the general physical 

characteristics of the subject merchandise and the environment in which the subject 

merchandise are sold, the Parties dispute whether the subject merchandise are used 

in the same manner as the side protective attachments that are excluded from the 

25% ad valorem rate of duty. See Def.’s Br. at ௅Pl.’s Resp. Br. at ௅

The Parties dispute, for example, whether Plaintiff’s side bars, nerf bars, and bars 

are used principally for protection of the vehicle or are used principally as devices 

on which to step into an elevated vehicle such as a truck or SUV. See Def.’s Br. at 

௅3O¶V5HVS%UDW ௅The Parties also dispute how Plaintiff’s side 

bars, nerf bars, and bars compare to the Smittybilt side armor products that were 

granted the exclusion from Section 301 tariffs by USTR. See Pl.’s Br. at 18; Def.’s 

%UDW௅3O¶V5HVS%UDW௅௅The undisputed facts do not show what 
Court No. 21-00215 Page 23 

the expectations of the ultimate purchasers of the subject merchandise are or 

whether products that meet the description of “side protective attachments” are 

sold in a different environment than the subject merchandise. See Def.’s Facts ¶¶ 

26, ௅3O¶V5HVS'HI¶V)DFWV¶¶ 26, ௅There is also a dispute whether 

the primary use of Plaintiff’s side bars, nerf bars, and bars is for stepping into 

higher vehicles, rather than a secondary use of protecting the vehicles, and whether 

this would affect if the subject merchandise can be deemed to have the same 

function and principal use as the side protective attachments provided for in U.S. 

Note 20(iii)(213) to Subchapter III of Chapter 99 of the HTSUS. See Def.’s Br. at 

16௅20; Pl.’s Resp. Br. at ௅; Def.’s Reply Br. at ௅ 

The undisputed facts are not sufficient for the Court to fully analyze whether 

the subject merchandise are commercially fungible with the side protective 

attachments described in U.S. Note 20(iii)(213) to Subchapter III of Chapter 99 of 

the HTSUS. The undisputed facts do not adequately address all the Carborundum 

factors, particularly 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. Because relevant material facts 

remain in dispute, the Court is unable to grant either Plaintiff’s or Defendant’s 

motion for summary judgment at this stage of litigation. 
Court No. 21-00215 Page 24 

CONCLUSION 

For the foregoing reasons, the Court will hold a bench trial to make a 

preliminary determination as to the principal use of the subject merchandise and a 

subsequent determination “as to the group of goods that are commercially fungible 

with the imported goods.” Aromont, 671 F.3d at 1312 (quoting Primal Lite, Inc. v. 

United States, 182 F.3d 1362, 1365 (Fed. Cir. 1999)). After making these 

determinations at trial, the Court will decide whether the subject merchandise are 

commercially fungible with the side protective attachments described in U.S. Note 

20(iii)(213) to Subchapter III of Chapter 99 of the HTSUS, and are therefore 

excluded from the 25% ad valorem rate of duty as provided for under HTSUS 

heading 9903.88.56. 

Accordingly, it is hereby: 

ORDERED that Plaintiff’s Motion for Summary Judgment, ECF Nos. 

48, 49, is denied; and it is further 

ORDERED that Defendant’s Cross-Motion for Summary Judgment, 

ECF Nos. 50, 51, is denied; and it is further 

ORDERED that a bench trial will be held on a date to be determined. 

 /s/ Jennifer Choe-Groves 

Jennifer Choe-Groves, Judge 

Dated: October 7, 2024 

 New York, New York