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HQ 957756




May 16, 1995

CLA-2 R:C:M 957756 KCC

CATEGORY: CLASSIFICATION

TARIFF NO.: 6805.30.50

Mr. Steven Wazlavek
Mbodi International Inc.
2520 East Piedmont Road, Suite F-122
Marrietta, Georgia 30062

RE: NY 880199 revoked; foot file; 6804.30.00; hand sharpening or polishing stones; EN 68.04; base; EN 68.05; HRL 955223, 955575 and 951607

Dear Mr. Wazlavek:

This is in regards to New York (NY) 880199 issued to you on December 3, 1992, by the Area Director, New York Seaport, which classified the "Glorious Foot File" from Sweden under subheading 6804.30.00, Harmonized Tariff Schedule of the United States (HTSUS), as hand sharpening or polishing stones. We have reviewed that ruling and are of the opinion that classification under subheading 6804.30.00, HTSUS, is incorrect.

Pursuant to section 625(c)(1), Tariff Act of 1930 (19 U.S.C. 1625(c)(1)), as amended by section 623 of Title VI (Customs Modernization) of the North American Free Trade Agreement Implementation Act (Pub. L. 103-182, 107 Stat. 2057, 2186), notice of the proposed revocation of NY 880199 was published on April 12, 1995, in the Customs Bulletin, Volume 29, Number 15. Information submitted in your letter dated April 10, 1995, in response to the proposed revocation was taken into consideration in rendering this decision.

FACTS:

In NY 880199 the foot file was described as follows:

You have submitted a sample, the "Glorious Foot File," which appears to be a piece of plastic which has an oval shape at one end and a handle at the other end. The oval portion is concave on one side and convex on the other. Both sides of the oval are coated with abrasive. You have stated that the principal use of this item is to smooth and soften rough skin.

In a letter dated April 10, 1995, you provided a sample of the foot file and stated that the label "Glorious Foot File" was incorrect. You described the foot file as a "black foot file with curve." You state that "abrasive is blasted into plastic" and that no glue is used in the manufacturing operation. Additionally, you note that the foot file is from Denmark, not Sweden.

ISSUE:

Is the "Glorious Foot File" classified under subheading 6804.30.00, HTSUS, as hand sharpening or polishing stones, or under heading 6805.30.50, HTSUS, as other natural or artificial abrasive powder or grain, on a base of other materials?

LAW AND ANALYSIS:

The classification of merchandise under the HTSUS is governed by the General Rules of Interpretation (GRI's). 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 competing subheadings are as follows:

6804.30.00 Millstones, grindstones, grinding wheels and the like, without frameworks, for grinding, sharpening, polishing, trueing or cutting, hand sharpening or polishing stones, and parts thereof of natural stone, of agglomerated natural or artificial abrasives, or of ceramics, with or without parts of other materials...Hand sharpening or polishing stones.

6805.30.50 Natural or artificial abrasive powder or grains, on a base of textile material, of paper, of paperboard or of other materials, whether or not cut to shape or sewn or otherwise made up...On a base of other materials...Other.

In understanding the language of the HTSUS, the Harmonized Commodity Description and Coding System Explanatory Notes (ENs) may be consulted. The ENs, although not dispositive nor legally binding, provide a commentary on the scope of each heading of the HTSUS and are generally indicative of the proper interpretation of these headings. See, T.D. 89-80, 54 Fed. Reg. 35127, 35128, (August 23, 1989). EN 68.04 (pgs. 899-900) states, in pertinent part, that:

(3) Grinding wheels, heads, discs, points, etc., as used on machine-tools, electro-mechanical or pneumatic hand tools, for the trimming, polishing, sharpening, trueing or sometimes for the cutting of metals, stone, glass, plastics, ceramics, rubber, leather, mother of pearl, ivory, etc....

The heading covers such tools not only when they are predominantly of abrasive materials, but also when they consist...of a centre or core of rigid material (metal, wood, plastics, cork, etc.) on to which compact layers of agglomerated abrasive have been permanently bonded....

Agglomerated grinding wheels, etc., are made by mixing ground abrasive or stone with binders such as ceramic materials (for example, powdered clay or kaolin, sometimes with added felspar), sodium silicate, cement (especially magnesian cement) or less rigid cementing materials (such as rubber, shellac or plastics). Textile fibres such as cotton, nylon or flax are sometimes incorporated in the mixtures. The mixtures are moulded to shape, dried, and then heated (if necessary to the stage of vitrification in the case of ceramic binders) or cured (in the case of the rubber, plastics, etc., binders). The articles are then trimmed to size and shape...

The heading does not include:...

(b) Natural or artificial abrasive powder or grain coated on to textile material, paper, paperboard or other materials (heading 68.05), whether or not the textile material, paper, etc., is subsequently glued on to supports such as discs or strips of wood (buff-sticks for use in the clock and watch industry, mechanical engineering, etc.).

EN 68.05 (pg. 901) for natural or artificial abrasive powder or grain states, in pertinent part, that:

This heading covers textile material, paper, paperboard, vulcanised fibre, leather or other materials, in rolls or cut to shape (sheets, bands, strips, discs, segments, etc.), or in threads or cords, on to which crushed natural or artificial abrasives have been coated, usually by means of glue or plastics. The heading also covers similar products of nonwovens, in which abrasives are uniformly dispersed throughout the mass and fixed on to textile fibres by the binding substance. The abrasives used include emery, corundum, silicon carbide, garnet, pumice, flint, quartz, sand and glass powder. The bands, discs, etc., may be sewn, stapled, glued or otherwise made up;....But the heading excludes grinding wheels composed of a rigid support (e.g., of paperboard, wood, metal) fitted with a compact agglomerated layer, rather than powder or grain, of abrasive, and similarly constituted hand tools (heading 68.04).

It is our opinion that the foot file is provided for under subheading 6805.30.50, HTSUS. EN 68.05 specifically describes the foot file at issue. The foot file consists of a base coated with abrasive material via a blasting operation. Based on the additional information and sample submitted, the actual base is composed of plastic. Therefore, the foot file is classified under subheading 6805.30.50, HTSUS, as other natural or artificial abrasive powder or grain, on a base of other materials.

The foot file is not provided for under subheading 6804.30.00, HTSUS. EN 68.04 states that heading 6804, HTSUS, covers actual agglomerated material which has been molded to shape and heated or cured. As previously stated, the material at issue is plastic coated via a blasting operation with abrasive material. The foot file is not of the class or kind of hand sharpening or polishing stones classifiable under subheading 6804.30.00, HTSUS.

HOLDING:

Since the foot file is composed of abrasive material coated onto a plastic base, it is classified under subheading 6805.30.50, HTSUS, as other natural or artificial abrasive powder or grain, on a base of other materials. Articles classified under this tariff provision enter the U.S. duty free.

NY 880199 is revoked as directed above. In accordance with 19 U.S.C. 1625, this ruling will become effective 60 days after its publication in the Customs Bulletin. Publication of rulings or decisions pursuant to 19 U.S.C. 1625 does not constitute a change of practice or position in accordance with section 177.10(c)(1), Customs Regulations (19 CFR 177.10(c)(1)).

Sincerely,

John Durant, Director
Commercial Rulings Division`

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