CLA-2 OT:RR:CTF:EMAIN H310333 NVF
Port Director, Port of Norfolk
U.S. Customs and Border Protection
101 E. Main Street
Norfolk, VA 23510
Attn: Karen E. Beaudin, Import Specialist
RE: Application for Further Review of Protest No. 1401-20-101177; Classification of Vehicle Lifts
Dear Port Director:
This letter is in response to the Application for Further Review (“AFR”) of Protest No. 1401-20-101177, timely filed by Barnes, Richardson & Colburn LLP on behalf of Challenger Lifts, Inc. (“Challenger”). The protest pertains to the classification and liquidation by U.S. Customs and Border Protection of certain vehicle lifts under heading 8428 of the Harmonized Tariff Schedule of the United States (“HTSUS”).
FACTS:
There are three types of vehicle lifts at issue in this case. Challenger identifies them as (1) two post hoists; (2) four post hoists; and (3) scissoring lift hoists. All three items are used to raise automotive vehicles in repair garages. The lifts were entered under subheading 8425.41.00, HTSUS, as built-in jacking systems of a type used in garages. CBP reclassified them under subheading 8428.90.02, HTSUS, as other lifting machinery.
The first lift is item LE10, Symmetric/Asymmetric 2-Post Lift, which Challenger refers to as a “two post lift hoist.” It is pictured below. The two post lift has a frame with arms on two sides which go under a vehicle frame, enabling the lift to raise the vehicle.
The second item is item 4P14EFX, Surface Mounted Four-Post Lift which Challenger describes as a “four post lift hoist,” pictured below. The four post lift is a platform on four legs which lifts a vehicle by raising the entire platform. Thus, unlike with a two post lift, where the weight of the vehicle is held on its frame, in a four post lift, the weight of the vehicle is on all four tires.
The third item is item MR6, Portable Mid-Rise Lift, referred to by Challenger as a “scissors lift hoist,” pictured below. It is a portable hydraulic system which lifts a vehicle from below using a pair of braces that cross diagonally as in a pair of scissors.
ISSUE:
Whether the vehicle lifts are classified as hoists and jacks of heading 8425, HTSUS, or as other lifting machinery of heading 8428, HTSUS.
LAW AND ANALYSIS:
We observe as an initial matter that the matters protested are protestable under 19 U.S.C. § 1514(a)(2) as decisions on classification and amount of duties chargeable. The subject merchandise was entered by Challenger between July 10, 2018 and November 14, 2018. CBP liquidated the entries on November 1, 2019 and November 8, 2019. On January 21, 2019, Challenger timely filed a protest and AFR, within 180 days of liquidation of the first entry. Miscellaneous Trade and Technical Corrections Act of 2004, Pub.L. 108-429, § 2103(2) (B) (ii), (iii) (codified as amended at 19 U.S.C. § 1514(c) (3) (2006). Further review of the protest is properly accorded to protestant pursuant to 19 C.F.R. § 174.24(a) because the decision against which the protest was filed is alleged to be inconsistent with a previous CBP decision concerning substantially similar merchandise.
Merchandise imported into the United States is classified under the HTSUS. Tariff classification is governed by the principles set forth in the General Rules of Interpretation (“GRIs”) and, in the absence of special language or context which requires otherwise, by the Additional U.S. Rules of Interpretation. The GRIs and the Additional U.S. Rules of Interpretation are part of the HTSUS and are to be considered statutory provisions of law for all classification purposes.
GRI 1 requires that classification be determined first according to the terms of the headings of the tariff schedule and any relevant section or chapter notes. In the event that the goods cannot be classified solely on the basis of GRI 1, and if the heading and legal notes do not otherwise require, the remaining GRIs 2 through 6 may then be applied in order.
The HTSUS provisions under consideration in this case are as follows:
8425 Pulley tackle and hoists other than skip joists; winches and capstans; jacks.
8428 Other lifting, handling, loading or unloading machinery (for example, lifts, escalators conveyors, teleferics).
The Harmonized Commodity Description and Coding System Explanatory Notes (EN’s) constitute the official interpretation of the Harmonized System. While not legally binding on the contracting parties, and therefore not dispositive, the EN’s provide a commentary on the scope of each heading of the Harmonized System and are thus useful in ascertaining the classification of merchandise under the system. CBP believes the EN’s should always be consulted. See T.D. 89-80, 54 Fed. Reg. 35127, 35128 (Aug. 23, 1989).
The EN to heading 8425, HTSUS states, in pertinent part:
The pulley tackle and hoists classified in this heading consist of more or less complex systems of pulleys and cables, chains, ropework, etc., designed to give a mechanical advantage to facilitate lifting (e.g., by use of pulleys of different diameter, toothed wheels, gearing systems). This group includes, inter alia: (1) Tackle and hoists in which the chain engages in specially designed projections on the pulley rims. (2) Drum type pulley hoists in which the cable is wound on a drum enclosing the pulley mechanism. This self contained type of hoist, usually pneumatic or electric, is often mounted on a trolley or crab running on an overhead rail. (3) Hoists consisting of a roller chain running over a geared system of sprocket wheels operated by a crank handle or lever, somewhat as in a jacking system.
Jacks are designed to raise heavy loads through short distances. The heading includes rack and pawl jacks, screw jacks in which the screw is raised by rotation or by rotating a nut fixed in the jack base, and telescopic screw jacks operated by the action of two or more concentric screws, the outer screw turning in the nut in the jack base. In hydraulic or pneumatic jacks, the lifting piston is forced along a cylinder by pressure generated in a pump or compressor which may be separate or built-in. Special type of jacks include: (3) Garage type built-in jacking systems, usually hydraulic.
The EN to heading 8428, HTSUS states, in pertinent part:
With the exception of the lifting and handling machinery of headings 84.25 to 84.27, this heading covers a wide range of machinery for the mechanical handling of materials, goods, etc. (lifting, conveying, loading, unloading, etc.). They remain here even if specialised for a particular industry, for agriculture, metallurgy, etc.
The heading covers lifting or handling machines usually based on pulley, winch or jacking systems, and often including large proportions of static structural steelwork, etc.
Because the text of heading 8428, HTSUS, covers other lifting and handling machinery, we first examine whether the subject merchandise falls under the scope of heading 8425, HTSUS, i.e. whether the subject merchandise are “hoists” or “jacks”.
When a term is not defined in either the HTSUS or the ENs, which constitute the official interpretation of the Harmonized System, we look to its common and commercial meaning. See Nippon Kogasku (USA) Inc. v. United States, 69 C.C.P.A. 89, 92-93 (1982); C.J. Towers & Sons v. United States, 69 C.C.P.A. 128, 133-134 (1982). In this case, the HTSUS differentiates between various types of lifting and handling equipment classified under headings 8425, HTSUS, through 8428, HTSUS. The ENs accordingly provide features to distinguish the goods covered by these headings. Specifically, the hoists contemplated by heading 8425 are those consisting of a system of pulleys along with some type of cables, chains, or rope, etc., and a jack of heading 8425 is designed to raise heavy loads through short distances. The ENs further explain that if lifting machinery is not classifiable in heading 8425 (through heading 8427) then it is classified under heading 8428, even if specialized for a particular industry.
We likewise observe that common and commercial meanings of “hoist” do not contradict the definitions set forth in the ENs. The Institute of Electronics and Engineers (“IEEE”) defines a hoist as:
{A}n apparatus for moving a load by the application of a pulling force and not including a car or platform running in guides. These devices are normally designed using roller or link chain and built-in leverage to enable heavy loads to be lifted or pulled. They are often used to deadend a conductor during sagging and clipping-in operations and during the tensioning of guys. Syn.: chain hoist, chain tugger, coffing, coffing hoist, come-along, drum puller.
The Occupational Safety and Health Administration (OSHA) defines hoisting equipment as:
{C}ommercially manufactured lifting equipment designed to lift and position a load of known weight to a location at some known elevation and horizontal distance from the equipment's center of rotation. "Hoisting equipment" includes but is not limited to cranes, derricks, tower cranes, barge-mounted derricks or cranes, gin poles and gantry hoist systems.
The Material Handling Institute provides thorough information regarding hoists. It defines hoists in general as:
For vertical lifting of freely suspended, heavy, bulky loads, hoisting equipment (or hoists) works in conjunction with overhead cranes and workstation cranes. Their lifting capacities depend on their construction. Their travel is directed by an operator, either manually or with a wired pendant station or wireless controls. Typical applications include helping operators in manufacturing, warehousing and construction to lift loads in support of production or storage activities, loading and unloading, or one process to the next.
Hoisting equipment lifts loads with either link or roller chain or wire rope. It... is used with a number of attachments to facilitate load lift….
Taken together, the ENs and the definitions from various technical sources describe a hoist as machinery which pulls an item up through the vertical plane and often across the horizontal plane, typically with a hook of some sort that attaches the cargo to overhead chain or rope. This is in line with the types of hoists described and illustrated by the Hoist Manufacturers Institute in its website. All of the hoists listed and pictured in its Product Guide appear to be overhead machinery which pull cargo up utilizing a hook and chain. See https://www.mhi.org/hmi/product-guide (last visited June 24, 2020).
With regard to the definition of a “jack,” we similarly conclude that the ENs and technical definitions are aligned. For instance, we observe that OSHA describes a jack as “an appliance for lifting and lowering or moving horizontally a load by application of a pushing force. Jacks may be of the following types: Lever and ratchet, screw and hydraulic.”
In this case, the three vehicle lifts at issue are not hoists of heading 8425. Rather than pulling a load up using ropework or chains and a hook, the lifts at issue lift or raise a load from below, and use platforms or arms to carry the weight of the cargo. The load is not freely suspended nor can it be moved horizontally using the subject lifts. While the two post lift arguably has an overhead frame, it does not have an overhead rail with lifting mechanism mounted on a trolley or crab.
We also find that the subject lifts are not jacks of heading 8425. The EN for heading 8425 states that a jack is designed to raise heavy loads through short distances. All three lifts at issue are designed to raise vehicles a substantial distance. The two post lift can raise a vehicle 74.75”, the four post lift raises a vehicle up to 78”, and the scissors lift, which is described by name and in Challenger’s marketing materials as a mid-rise lift, raises a vehicle up to 52.75” high.
Because the subject vehicle lifts cannot be classified as a hoist or jack of heading 8425, HTSUS, they are classified under heading 8428, HTSUS, which provides for other lifting and handling machinery. This is consistent with our prior rulings, in which CBP classified vehicle lifts under heading 8428, HTSUS. See NY K85073 (May 4, 2004) (scissor type motorcyle lift), NY N008193 (Apr. 5, 2007) (four post lift), NY N119135 (Aug. 20, 2010) (car stacker), NY N287695 (July 24, 2017) (motorcycle lift), NY N299553 (Aug. 15, 2018) (car lift system).
Challenger asserts that in prior rulings we have established that the only evidence needed to establish classification in heading 8425, HTSUS is an item’s common and commercial name. This argument is misguided. As stated above, classification of goods is governed by the GRIs and GRI 1 requires that classification be determined first according to the terms of the headings of the tariff schedule. It is only when a term is not defined in either the HTSUS or the ENs that we look to its common and commercial meaning. See Nippon Kogasku, 69 C.C.P.A. at 92-93; C.J. Towers & Sons, 69 C.C.P.A. at 133-134. Nonetheless, even assuming arguendo, that in this case we rely on the common and commercial meaning of the term, Challenger’s argument still fails. We observe that Challenger’s full company name is Challenger Lifts, Inc. (emphasis added). Challenger’s own website and marketing materials characterize all of its automotive raising products, including the three at issue, as lifts. Additionally, the website for the Automotive Lift Institute (emphasis added), clearly and unequivocally identifies the items as lifts and discusses certified lifts, certified lift inspectors, types of lifts, lift testing, buying lifts, and using lifts. Challenger identifies one single statement on ALI’s About Us page as definitive evidence that the items are known as hoists. We do not find that this lone statement outweighs the multitude of examples in which the subject items are referred to as lifts in the common and commercial context, including that of the industry regulating body and the importer’s characterization of their own products.
We also are not convinced by Challenger’s argument that “the hoists and lifts used for vehicles are classifiable under HTSUS heading 8425, since they are classified by reference to the field in which they are used.” While subheadings 8425.41, 8425.42, and 8425.49 fall under “hoists of a kind used for raising vehicles,” the text expressly refers to hoists. We have already established that the subject lifts are not hoists. Challenger’s interpretation would render the word “hoist” irrelevant, which runs counter to the fundamental principles of classification.
In light of the foregoing, we conclude that the two post lift, the four post lift, and the scissors type lift are classified under heading 8428, HTSUS as other lifting machinery.
HOLDING:
By application of GRIs 1 and 6, the two post lift, four post lift, and scissors type mid-rise lift are classified in heading 8428, specifically subheading 8428.90.02, HTSUS, which provides for: Other lifting, handling, loading or unloading machinery (for example, elevators, escalators, conveyors, teleferics): Other machinery.
You are instructed to DENY the protest.
In accordance with Sections IV and VI of the CBP Protest/Petition Processing Handbook (HB 3500-08A, December 2007, pp. 24 and 26), you are to mail this decision, together with the CBP Form 19, to the Protestant no later than 60 days from the date of this letter. Any reliquidation of the entry or entries in accordance with the decision must be accomplished prior to mailing the decision.
Sixty days from the date of the decision, the Office of Trade, Regulations and Rulings, will make the decision available to CBP personnel, and to the public on the Customs Rulings Online Search System (“CROSS”) at https://rulings.cbp.gov/, which can be found on the CBP website at http://www.cbp.gov and other methods of public distribution.
Sincerely,
Craig T. Clark, Director
Commercial and Trade Facilitation Division