HQ 955106: NYRL 888066 affirmed; IcEscape safety device; EN GRI 3

Native CBP ruling rendition. Applicability is fact-specific; modification/revocation relationships and original publisher date are retained. Publisher sentinel year0001 means unknown date, not a historical legal adoption.

                            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