CLA-2 CO:R:C:M 954857 KCC
District Director
U.S. Customs Service
610 South Canal Street
Chicago, Illinois 60607
RE: Protest No. 3901-93-101074; Scotchbrite Flap Brush and Combi
Wheels; 6804.22.10; EN 68.04; EN 68.05; HRL 951607
Dear District Director:
This is in response to the Application for Further Review of
Protest No. 3901-93-101074, which pertains to the tariff
classification of Scotchbrite Flap Brush and Combi Wheels under
the Harmonized Tariff Schedule of the United States (HTSUS).
Samples were submitted for examination.
FACTS:
The Scotchbrite Flap Brush and Combi Wheels ("wheels") are
surface conditioning abrasive products which are designed to clean
and condition a surface for painting or plating operations, deburr
drilled, punched or machined parts and/or provide a decorative
scratch pattern on a workpiece.
The wheels are composed of abrasive coated nonwoven fibers.
The abrasive coated nonwoven fibers are manufactured by coating a
loosely formed nonwoven nylon fiber web with a slurry consisting
of a phenolic resin and particles of either aluminum oxide or
silicon carbide. The abrasive web is oven dried and then slit into
narrow strips. The abrasive strips are put through a machine which
cuts them to a specified length and inserts them into and around
a circular fixture containing a spindle. Liquid epoxy resin is
then poured into the center of the wheel forming the hub. As the
epoxy resin solidifies, it binds the web to the spindle. The Combi
wheel is different only in the fact that it contains strips of
abrasive coated cloth. The abrasive coated cloth is alternated
with the abrasive web when inserted into and around the circular
fixture.
The entry of the wheels was liquidated March 26, 1993, under
subheading 6804.22.60, HTSUS, as other millstones, grindstones,
grinding wheels and the like, of other agglomerated natural
abrasives. In a protest timely filed on June 10, 1993, the
protestant contends that the wheels are classified under subheading
6805.30.10, HTSUS, as natural or artificial abrasive powder or
grain, on a base of other materials. The protestant states that
the wheels are flexible abrasive products designed for surface
conditioning and cleaning. They are not rigid products for
grinding, sharpening, cutting, etc. as found in heading 6804,
HTSUS.
The competing subheadings are:
6804.22.60 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...Other millstones, grindstones,
grinding wheels and the like...Of other agglomerated
abrasives or of ceramics...Other...Other.
6805.30.10 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...Articles of wholly or partly coated with
abrasives, in the form of sheets, strips, disks,
belts, sleeves or similar forms.
ISSUE:
Are the Scotchbrite Flap Brush and Combi Wheels classified
under subheading 6804.22.60, HTSUS, as other millstones,
grindstones, grinding wheels and the like, of other agglomerated
natural abrasives, or under subheading 6805.30.10, HTSUS, as
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...."
In understanding the language of the HTSUS, the Harmonized
Commodity Description and Coding System Explanatory Notes (ENs),
may be utilized. The ENs, although not dispositive, are to be used
to determine the proper interpretation of the HTSUS. 54 Fed. Reg.
35127, 35128 (August 23, 1989). EN 68.04 (pgs. 899-900) states,
in 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) states 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).
The goods of this heading are mainly used (by hand or
mechanically) for smoothing or cleaning up metal, wood, cork,
glass, leather, rubber (hardened or not) or plastics; also for
smoothing or polishing varnished or lacquered surfaces, or for
sharpening card clothing.
It is our opinion that the wheels are provided for under
heading 6805, HTSUS. EN 68.05 specifically describes the wheels
at issue. The wheels consist of woven cloth which is coated on
one side with a slurry composed of abrasives such as silicon
carbide or aluminum oxide (corundum) and a binding agent of
phenolic resin, and nonwoven fibre which is also uniformly coated
on both sides with the slurry mixture. The wheels are mainly used
for surface conditioning such as cleaning for painting or plating,
deburring, and/or providing a decorative scratch pattern to a
surface. The wheels are specifically provided for under subheading
6805.30.10, HTSUS, as natural or artificial abrasive powder or
grain, on a base of other materials. See, Headquarters Ruling
Letter (HRL) 951607 dated July 13, 1992, in which similar abrasive
wheels were classified under subheading 6805.30.10, HTSUS.
The wheels are not provided for under heading 6804, 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 the woven
cloth and nonwoven fibre which is coated with abrasives and allowed
to dry; it is not molded to shape and heated or cured. Moreover,
the wheels are not designed to trim, polish, sharpen, true or cut
various material. Additionally, EN 68.04 states that abrasive
powder or grain coated on to textile material or other material
which is subsequently glued on to supports such as a discs is
excluded from classification under heading 6804, HTSUS. The wheels
are not of the class or kind of grindstones classifiable under
heading 6804, HTSUS.
HOLDING:
The Scotchbrite Flap Brush and Combi Wheels are classified
under subheading 6805.30.10, HTSUS, as natural or artificial
abrasive powder or grain, on a base of other materials. The
protest should be granted.
In accordance with Section 3A(11)(b) of Customs Directive 099
3550-065, dated August 4, 1993, Subject: Revised Protest Directive,
this decision, together with the Customs Form 19, should be mailed
by your office to the protestant no later than 60 days from the
date of this letter. Any reliquidation of the entry in accordance
with the decision must be accomplished prior to mailing of the
decision. Sixty days from the date of the decision the Office of
Regulations and Rulings will take steps to make the decision
available to Customs personnel via the Customs Rulings Module in
ACS and the public via the Diskette Subscription Service, Lexis,
Freedom of Information Act and other public access channels.
Sincerely,
John Durant, Director