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, International Trade Field Office, Commercial Litigation 

Branch, Civil Division, United States Department of Justice, New York, NY; YELENA SLEPAK, Office of the Assistant 
2 FORD MOTOR COMPANY v. UNITED STATES

Chief Counsel, United States Bureau of Customs and Border Protection, United States Department of Homeland Security, 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 International Trade (“CIT”), challenging U.S. Customs and 

Border Protection’s (“Customs”) classification of its model 

year (“MY”) 2012 Transit Connect 6/71 vehicles under Harmonized 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 Subheading 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 pursuant 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 [number] 6 or 7 in the sixth digit.” J.A. 5540.

2 “All citations to the HTSUS refer to the 20[11] version, as determined by the date of importation of the merchandise.” 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 merchandise, “which entered at the Port of Baltimore on December 

26, 2011.” Ford, 254 F. Supp. 3d at 1303 (citation omitted).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 Connect 9. See id. at 1304 n.13.4 Ford based the design of both 

types of Transit Connect vehicles on its then-existing European V227 line of vehicles and imported the Transit Connects 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. (internal 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 vehicle’s lighting, labels, and turn signals. Id. at 1306. Moreover, “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 Connect 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 passenger 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 parties’ 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 construction[,] . . . front-wheel drive[,] rear passenger seats with 

seat anchors[,] . . . underbody bracing[,] . . . front suspension[,] . . . and over [fifty] inches of space from floor to ceiling in the rear.” Id. (citations omitted). The subject 

merchandise “had swing-out front doors with windows, second-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 bracing in the side pillars of the car body,” as well as “childlocks 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 footwells 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 (citations 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-reduced seat (‘CRSV-1’),” which “resulted in the removal of 

the head restraints, torsion bar assembly and mount, tumble lock mechanism and associated labels, and backrest reinforcement pad from the MY[ ]2010 Transit Connect 6/7 

rear seat.” Id. at 1310 (citations omitted). Ford subsequently created its second cost-reduced seat (“CRSV-2”), 

which are the seats that were used in the subject merchandise. See id. at 1311. These seats “incorporated the following changes from CRSV-1”: (1) “removal of four of the 

seven seatback wires,” (2) “wrapping of the seat in a costreduced fire-resistant grey woven cover[,] . . . which is not 

the same as the fabric used to cover the front seat,” (3) “replacement of the front leg seat anchor cover, which was designed to attach to the tumble lock mechanism, with a 

cover that did not contain a space for the tumble lock mechanism,” (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) discontinuation of the application of the “black paint to the visible, 

metal portions of the [rear] seat frame.” Id. (internal quotation marks, brackets, and citations omitted). Although 

Ford’s “engineers concluded that the fabric change and removal of seatback wires did not affect the CRSV-2’s 

FMVSS compliance,” “Ford did not conduct consumer testing or surveys before implementing the CRSV-2.” Id. (internal quotation marks and citations omitted). 

After importation, Ford made several changes to the 

subject merchandise once the merchandise cleared Customs, 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 “removing . . . a protective covering,” “disengaging Transportation Mode,” and “checking for low fuel.” Id. (internal 
FORD MOTOR COMPANY v. UNITED STATES 7

quotation marks and citations omitted). The Transit Connect 6/7s underwent “additional” processing (“post-importation processing”). Id. Specifically, “the second-row seat[s 

were] unbolted and removed, along with the associated second 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 delivered 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 omitted). 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 merchandise was properly classified under HTSUS Heading 8704, 

specifically HTSUS Subheading 8704.31.00. Customs Ruling 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 condition at the time of importation, see id. at 1316–17, and concluded “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 assessment of intended use is not necessary to distinguish 

[HTSUS Heading] 8703 from 8704,” it found “it unnecessary to consider principal or intended use, or the [relevant 

use] factors, to define the tariff terms.” Id. at 1332. Furthermore, the CIT rejected the argument that Ford’s postimportation 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 omitted).

DISCUSSION

I. Standard of Review and Legal Framework

We review the CIT’s decision to grant summary judgment 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, alterations, 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 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.”

“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 meaning 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 subject 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 suffixes . . . are not statutory,” as those suffixes are not incorporated 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 particularized segregation of the goods within each category.” Wilton Indus., 741 F.3d at 1266. “The first four digits of an 

HTSUS provision constitute the heading, whereas the remaining 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 appendices for particular categories of goods.” Id. (footnote omitted).

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 subsequent 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 (internal quotation marks and citation omitted). “[T]he possible 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 intent, 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 authorities, and other reliable information sources.” Kahrs Int’l, 

Inc. v. United States, 713 F.3d 640, 644 (Fed. Cir. 2013) (citation 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 classification “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 imported 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 guidance and are generally indicative of the proper interpretation, 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 Orlando 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 related 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 persons (other than those of [HTSUS H]eading 8702), including 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 Appellant’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). According to the Government, it was proper for Customs to 

consider, inter alia, factors that are typically used to evaluate 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 different rules and analysis will apply depending upon the heading 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 provision)). “[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. Alternatively, “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 provision, the “principally designed for” portion inherently suggests 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 Heading 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 Dictionary 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 inadvertent; intended, planned.’” Id. at 534. Given these definitions, 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 provision may require looking to intended use. In GRK, we considered 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 handbag or case to be classified as a vanity case, containing, carrying, 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 handbags 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 suggest . . . use,” where “the language of the particular headings . . . do[] not imply that use or design is a defining 

characteristic” (emphasis added)).

This conclusion follows from our precedent in Marubeni 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 employs the word principally, “is clear that a vehicle’s intended purpose of transporting persons must outweigh an 

intended purpose of transporting goods” and that “[t]o 

make this determination, . . . both the structural and auxiliary design features must be considered.” Id. at 535. 

Then, Marubeni II proceeded by endorsing the consideration 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 demands, 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 objective of the designer vis-à-vis the competition, at least as reflected in its polar charts. Product development 

documentation and advertising were consistent. The emphasis 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 materials that speak to the use of the product, see Marubeni II,

35 F.3d at 536, we therefore have signaled that consideration of use is appropriate for HTSUS Heading 8703, see id.;

see also Aromont, 671 F.3d at 1313 (listing appropriate considerations 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 displayed”). 

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 affirmed the classification of merchandise under a subheading for bicycles other than bicycles “not designed for use 

with [wide] tires.” 154 F.3d at 1381. The importer disagreed 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 limiting the examination of the objective physical design features 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 importer] to establish affirmatively that its product is not designed 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 features 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 principal, 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 designed language necessitates a broader inquiry, as described 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 evaluation to the subject merchandise’s “condition as imported.” 

Appellee’s Br. 38. “The rule is well established that in order to produce uniformity in the imposition of duties, the 

dutiable classification of articles imported must be ascertained 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 proposition that pre-importation activities can never be relevant. 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 precludes consideration of pre-importation design goals if we 

construe HTSUS Heading 8703 as not allowing for consideration of use. Oral Arg. at 28:03–30, http://oralarguments.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 structure 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 provision . . . .”). Because the “principally designed for” language of HTSUS Heading 8703 inherently requires 

considerations of intended use, consideration of pre-importation 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 limited circumstances where the relevant heading, HTSUS 

Heading 8703, is an eo nomine provision for which consideration 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 limitation 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 principal 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 classifying 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 exclusively 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] Connect 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 transporting persons must outweigh an intended purpose of 

transporting goods” and that, “[t]o make this determination, . . . both the structural and auxiliary design features 

must be considered.” Marubeni II, 35 F.3d at 535. Structural design features include “basic body, chassis, . . . suspension 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 understanding 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 steering system (e.g., a steering system based on the Ackerman 

principle).” EN(6), Heading 8703, HTSUS. The ENs identify “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 installing 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 permanent 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 discuss 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 passengers. 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 omitted). 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”; “Macpherson 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 discussion, 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 between the first and second row of seats”; and “ground clearance 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 objectives which were passenger transport and off-road capability.”), these structural features demonstrate similarities 

between the subject merchandise and Ford’s Transit Connect 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 passenger 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 impact,” and “swing-out rear doors, some of which had windows.” J.A. 4849. The ENs, which list “[p]resence of rear 

windows along the two side panels” and “[p]resence of sliding, swing-out or lift-up door or doors, with windows, on the 

side panels or in the rear” as indicative of design characteristics, demonstrate that these features of the subject 

merchandise are consistent with a passenger vehicle. EN, 

Heading 8703, HTSUS. However, a Ford brochure indicates 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 Connect 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 classification 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 vehicles are principally designed for the transport of persons.” 

EN, Heading 8703, HTSUS. Therefore, many of the structural 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 merchandise has some features indicative of passenger vehicles, including “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 lighting 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 “comfort 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 “covered 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 “ventilation” as a “comfort feature[]” for passengers, but rear ventilation 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 presence of “interior finish[ings]” is indicative of a passenger 

vehicle). There is a fundamental reason behind these design decisions. See Marubeni II, 35 F.3d at 536 (endorsing

the CIT’s consideration of “the reasons behind [certain] design 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 order, it knew that none of the CRSV-2s in the Transit Connect 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-importation 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, Marubeni II, 35 F.3d at 535; see Heading 8703, HTSUS (including “motor vehicles principally designed for the transport 

of persons” (emphasis added)). Although the EN to HTSUS 

Heading 8703 recognizes that indicative of passenger vehicles is the “[p]resence of permanent seats with safety equipment . . . 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 Therefore, as Customs recognized, Ford’s pre-importation design 

goals were that the subject merchandise could be

 

(acknowledging that all Transit Connects are made to order), 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 second 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 accessible after post-importation processing,” J.A. 5948 (internal 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 conclusion that the subject merchandise is designed to 

transport cargo. 

3. Relevant Use Considerations

The relevant use considerations strongly disfavor classification 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 provision, the criteria for determining principal use are also relevant here. When evaluating principal use, a court makes 

“a determination as to the group of goods that are commercially fungible with the imported goods.” BenQ Am. Corp. 

v. United States, 646 F.3d 1371, 1380 (Fed. Cir. 2011) (internal 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 factors”). Id.; see Carborundum, 536 F.2d 373, 377 (CCPA 

1976). Particularly relevant here are the following Carborundum factors: “the general physical characteristics of the 

merchandise,” “use in the same manner as merchandise 

 

9 Ford “considered affixing the windows to the sliding 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 (emphasis 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 accompanying accessories and the manner in which the merchandise is advertised and displayed.” Aromont, 671 F.3d 

at 1313.10 Regarding general physical characteristics, we 

explained above that, whereas the structural design features align with a passenger vehicle, the auxiliary design 

features support the conclusion that the subject merchandise 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 after 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. Nevertheless, it continues to resonate as a viable commercial vehicle,” to be used for, inter alia, “quick deliveries, pickups, 

and service calls.” J.A. 4751. In Carborundum, our predecessor court recognized that imports may be “specially processed 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 conclusion as to the use analysis.
FORD MOTOR COMPANY v. UNITED STATES 27

post-importation processing and are not utilized like passenger 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) (internal 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 maximum cargo capacity” (emphasis added)). The Transit Connect 6/7s’ use weighs heavily against classification under 

HTSUS Heading 8703. Accordingly, the Carborundum factors support the conclusion that the subject merchandise is 

not classifiable under HTSUS Heading 8703.11

 

11 The Government avers that the CIT erred in classifying Ford’s subject merchandise under HTSUS Heading 

8703 because Ford’s installation of the CRSV-2 seats constituted “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 “Connect 6/7 should be classified as a cargo vehicle under 

[HTSUS] Heading 8704.” Appellant’s Br. 35 (capitalization 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 provisions are governed by ARI 1(a), and a principal use “analysis 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 citation omitted). HTSUS Heading 8704, which covers 

“[m]otor vehicles for the transport of goods,” HTSUS Heading 8704 (emphasis added), is a principal use provision because the heading identifies the chief use of the covered

merchandise as of a kind used to transport goods, cf. Aromont, 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 alternative 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 automatic data processing system”). 

As discussed above, the balance of the Carborundum 

factors demonstrate that the made-to-order Transit Connect 6/7s are principally (if not exclusively) used for the 

transport of goods, rather than passengers. See supra Section II.B.3. The design features demonstrate the subject 

merchandise is “tailored to meet the specific needs of” consumers 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 subheading 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 evidence that Transit Connect 6/7s are designed for transporting excavated materials. See EN, Heading 8704, 

HTSUS (explaining that dumpers are “sturdily built vehicles with a tipping or bottom opening body, designed for the 

transport of excavated or other materials”). HTSUS Heading 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) (holding that, where merchandise is properly classified under a 

particular heading, but does not fall within a specific subheading, it is properly classified under the relevant heading’s “basket” or “catch-all” provision). Because the subject 

merchandise has “a spark-ignition internal combustion reciprocating 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 Subheading 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 eighthdigit 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 classification 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 opportunity 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 discretion 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 issue for appeal”).