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HQ 955106


April 8, 1994
CLA-2 CO:R:C:M 955106 MMC

CATEGORY: CLASSIFICATION

TARIFF NO.: 7326.90.90

Mr. David C. Hanson
Hanson Assets Services, Inc.
Suite 2
31 Dominion Road
Etobicoke, Ontario
M8W 1J5 Canada

RE: NYRL 888066 affirmed; IcEscape safety device; EN GRI 3

Dear Mr. Hanson:

This is in reference to our letter of February 9, 1994, informing you of the proposed revocation of New York Ruling Letter (NYRL) 888066 dated July 14, 1993, issued to you by the Area Director of Customs, New York Seaport, concerning the tariff classification of the "icEscape" safety device under the Harmonized Tariff Schedule of the United States (HTSUS). In our letter of February 9, 1994, you were advised that we were reviewing NYRL 888066 for possible revocation. Upon further consideration of the matter, we have decided to withdraw our proposal of revocation and affirm NYRL 888066.

FACTS:

Submitted information provides that the subject article is a safety device designed to be worn around the neck by people when snowmobiling, ice fishing, walking on ice, cross country skiing, ice-sailing, hunting and trapping, and dog sledding. It is designed to be used as an emergency aid if a person falls through ice on a pond, lake or river. The device consists of two polypropylene hand grips with a steel spike protruding from one end of each grip. The outer shell of each grip is made of a waterproof softflex foam. When the grips are placed end to end, the spike from one grip fits into a hole in the other grip. A Velcro strap connects the two. The device floats and can be seen in the dark.

Based on the submitted literature, should someone fall through ice, they can separate the two grips of the device, and then dig the steel spikes into the surrounding ice and pull themselves out of the water.

NYRL 888066 classified the "icEscape" safety device under subheading 7326.90.90, HTSUS, as an article of iron or steel. Upon review, a proposed notice of revocation was issued for NYRL 888066 because of the icEscape's possible classification under subheading 8205.59.55, HTSUS, as a handtool.

ISSUE:

Whether the icEscape is considered a handtool for tariff purposes?

LAW AND ANALYSIS:

Classification of merchandise under the HTSUS is in accordance with the General Rules of Interpretation (GRI's), taken in order. GRI 1, HTSUS, states in part that for legal purposes, classification shall be determined according to the terms of the headings and any relative section or chapter notes. The headings under consideration are as follows:

8205 [h]andtools (including glass cutters) not elsewhere specified or included; blow torches and similar self- contained torches; vises, clamps, and the like, other than accessories for and parts of machine tools; anvils; portable forges; hand or pedal-operated grinding wheels with frameworks; base metal parts thereof:

7326 [o]ther articles of iron or steel:

3926 [o]ther articles of plastic and other articles of materials of headings 3901 to 3914:

Handtools are not defined by the HTSUS or the Harmonized Commodity Description and Coding System Explanatory Notes (ENs). A tariff term that is not defined in the HTSUS or ENs is construed in accordance with its common and commercial meaning. Nippon Kagaku (USA), Inc. v. United States, 69 CCPA 89, 673 F.2d 380 (1982). Common and commercial meaning may be determined by consulting dictionaries, lexicons, scientific authorities and other reliable sources. C.J. Tower & Sons v. United States, 69 CCPA 128, 673 F.2d 1268 (1982).

The term "tool" is defined as follows:

(1) an implement, especially one held in the hand, as a hammer, saw, file, etc. for performing or facilitating mechanical operations. (2) the cutting part of a lathe, drill, or similar machine. (3) the machine itself; a machine tool... -Syn 1. Tool, Implement, Instrument, [and] Utensil refer to contrivances for doing work. A tool is a contrivance held and worked by the hand, for assisting work.

The Random House College Dictionary, pg. 1385, (1973).

While the icEscape is held in the hand, it does not perform or facilitate a mechanical operation, or aid in the doing of some work. Therefore, it does not meet the dictionary definition of a "tool". Because the icEscape is not a tool it cannot be classified under heading 8205, HTSUS.

As stated in NYRL 888066, the icEscape is considered a composite good consisting of both plastic and iron/steel portions and as such, it cannot be classified according to GRI 1. GRI 2(a) is inapplicable because it applies to incomplete or unfinished articles, and the icEscape is imported in a finished complete condition.

GRI 2(b) states, in pertinent part, that any reference in a heading to a material or substance shall be taken to include a reference to mixtures or combinations of that material or substance with other materials or substances. The classification of goods consisting of more than one material or substance shall be according to the principles of GRI 3.

GRI 3 states, in pertinent part, that when, by application of rule 2(b) or for any other reason, goods are, prima facie, classifiable under two or more headings, classification shall be effected as follows:

(a) ...when two or more headings each refer to part only of the materials or substances contained in mixed or composite goods...those headings are to be regarded as equally specific in relation to those goods, even if one of them gives a more complete or precise description of the goods.

The two remaining headings both refer to only a part of the composite article; heading 3926, HTSUS, to the handle portion and heading 7326, HTSUS, to the spike portion. Therefore, the headings are considered equally specific and GRI 3(b) must be examined.

GRI 3(b) states:

(b) Mixtures, composite goods consisting of different materials or made up of different components, and goods put up for retail sale, which cannot be classified by reference to 3(a), shall be classified as if they consisted of the material or component which gives them their essential character, insofar as this criterion is applicable.

According to EN GRI 3, pg.4, the factor which determines essential character will vary as between different kinds of goods. It may for example, be determined by the nature of the material or component, its bulk, quantity, weight or value, or by the role of a constituent material in relation to the use of the goods. Because the icEscape's pick portion anchors the device in the ice and allows an individual to escape from the water it is considered the portion that imparts the icEscape's essential character. Therefore, the icEscape is classified under subheading 7326.90.90, HTSUS, as an other article of iron or steel.

HOLDING:

The article is classified under subheading 7326.90.90, HTSUS, as an other article of iron or steel, with a column one duty rate of 5.7% ad valorem. NYRL 888066 is affirmed.

Sincerely,

John Durant, Director

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