CLA-2 CO:R:C:M 089006 NLP
District Director
U.S. Customs Service
Main and Stebbins Sts, PO Building
P.O. Box 1490
St. Albans, Vermont 05478
RE: Protest and Request For Further Review No. 0201-90-000383;
Grindstones of natural stone; grindstones of agglomerated
abrasives; subheadings 6804.22.10 and 6804.23.00;
explanatory notes to heading 6804; resins; synthetic
binders; U.S.-Canada Free Trade Agreement; General Note
3(c)(vii)(B)(1) and (2); General Note 3(c)(vii)(R)(13)(aa)
Dear Sir:
This is in response to your Protest and Request for Further
Review No. 0201-90-000383. At issue is the classification of
grindstones under the Harmonized Tariff Schedule of the United
States (HTSUS).
FACTS:
The articles subject to protest consist of various abrasive
wheels, bricks and segments. The abrasives in question are used
to grind and polish granite, marble and other stones. The
products are generally composed of the following materials:
1) xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx
2) Inert fillers-xxxxxxxxxxxxxxxxxxxxxxxxxxxx
3) Emery or silicon carbide
4) Phenolic resin
All of the above products are sourced in either the United
States or Canada, with the exception of the xxxxxxxxx, which is
manufactured in various countries in Europe. In Canada, the
abrasive, fillers and binder are combined together to form the
grindstones and they are then imported into the United States.
Upon importation, Customs classified some of the entries
under subheading 6804.22.40, HTSUS, which provides for
"[m]illstones, 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: [o]ther millstones, grindstones, grinding wheels and
the like: [o]f other agglomerated abrasives or of ceramics:
[o]ther: [a]brasive wheels." The bricks and segments were
classified in subheading 6804.22.60, HTSUS. However, after
discussions with the National Import Specialist Customs
determined that the grindstones are classifiable in subheading
6804.22.10, HTSUS, which provides for "[m]illstones, grindstones,
grinding wheels and the like...: [o]ther millstones, grindstones,
grinding wheels and the like: [o]f other agglomerated abrasives
or of ceramics: [b]onded with synthetic resins."
Counsel for the protestant contends that the grindstones are
bonded together with xxxxxxxxx and the majority of the balance of
the product is abrasive. Therefore, the grindstones are
classifiable in subheading 6804.23.00, HTSUS, which provides for
"[m]illstones, grindstones, grinding wheels and the like...:
[o]ther millstones, grindstones, grinding wheels and the like, of
natural stone." In the alternative, counsel contends that the
grindstones are classifiable in either subheadings 6804.22.40,
HTSUS, or 6804.22.60, HTSUS, as the amount of synthetic resin
used in the grindstones is minor xxxxxx.
The initial entries were liquidated on September 7, 1990,
and the protest timely filed on November 20, 1990.
ISSUE:
Are the grindstones comprised of xxxxxxx?
If the grindstones are comprised of xxxx, are they
classifiable in subheading 6804.22.10, HTSUS, or in subheading
6804.22.40/60, HTSUS?
LAW AND ANALYSIS:
The General Rules of Interpretation (GRI's) set forth the
manner in which merchandise is to be classified under the HTSUS.
GRI 1 requires that classification be determined first according
to the terms if the headings of the tariff and any relative
section or chapter notes and, unless otherwise required,
according to the remaining GRI's.
Heading 6804 provides for "[m]illstones, 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." The Harmonized
Commodity Description and Coding System Explanatory Notes to
heading 6804 state, on page 900, the following:
Grinding stones, grinding wheels, etc., must be made
essentially of natural stone, agglomerated or not, (e.g.,
sandstone, granite, lava, flint, molasse, dolomite, quartz,
trachyte), of agglomerated natural or artificial abrasives
(e.g., emery, pumice, tripoli...silicon carbide....) or of
ceramics....
Agglomerated grinding wheels, etc., are made by mixing
ground abrasive or stone with binders such as...cement
(especially magnesian cement) or less rigid cementing
materials (such as rubber, shellac or plastics)....
The subject grindstones are made by mixing an abrasive material,
either emery or silicon carbide xxxxx. Therefore, the grindstones
are considered agglomerated abrasives and as such, are classified
in subheading 6804.22, HTSUS.
The next issue to be resolved concerns the applicable eight
digit subheading. The possible eight digit subheadings for this
merchandise are the following:
6804.22.10 other millstones, grindstones, grinding
wheels and the like:
of other agglomerated abrasives or of
ceramics:
bonded with synthetic resin
6804.22.40 other millstones, grindstones, grinding
wheels and the like:
of other agglomerated abrasives or of
ceramics:
other:
abrasive wheels
6804.22.60 other millstones, grindstones, grinding
wheels and the like:
of other agglomerated abrasives or of
ceramics:
other:
other
The protestant has submitted a technical report on the issue
of whether the xxxxx present in the grindstones is used as a
xxxx, as earlier Customs laboratory reports have suggested. See,
Laboratory Report No, 2-90-22831-002. The supplemental
information provides detailed explanations and scientific
references to support the position that the xxxx contained in the
grindstones is not xxxx. We forwarded this technical report to
the Customs laboratory in New York for their analysis.
To support their position, the protestant included in the
report a discussion on xxxx for a grinding wheel with a similar
composition to the subject grindstones. The grinding wheel
subject xxxx was composed of silicon carbide xxxx. The amount of
xxxx present was xxxx. The second of the two patents describes
the subject of the patent as follows:
Abrasive for hard stones [granite, marble, etc.]
The compn. is the same as in the main specification but is
further improved by choosing xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx
The submission also demonstrated that the amount of xxxx needed
to serve as xxxx in grinding wheels is usually xxxx. This figure
is significantly higher than the amount of resin present in the
subject grindstones.
It is our conclusion that the additional information in its
totality is persuasive of the fact that, given the composition of
the subject grindstones, the xxxx grindstones and it does not act
xxxx. xxxx the grindstones. Therefore, the abrasive wheels are
classified in subheading 6804.22.40, HTSUS, and the other
grindstones are classified in subheading 6804.22.60, HTSUS.
United States-Canada Free Trade Agreement
Articles which are imported from Canada may be entitled to
certain tariff preferences under the United States-Canada Free
Trade Agreement ("CFTA") if the articles are "originating goods"
as defined by General Note 3(c)(vii)(B), HTSUS, which explains
how articles imported into the United States may be "goods
originating in the territory of Canada." The first method is if
goods are "wholly obtained or produced in the territory of Canada
and/or the United States." General Note 3(c)(vii)(B)(1), HTSUS.
The second method is if the goods are "transformed in the
territory of Canada and/or the United States." General Note
3(c)(vii)(B)(2), HTSUS.
A product which is "wholly obtained or produced in the
territory of Canada and/or United States" is one which is grown,
mined, harvested, born and raised in Canada and/or the United
States, or otherwise intimately connected to the two countries
and their land, air and sea territories as defined in General
Note 3(c)(vii)(L), HTSUS. Since the grindstones are manufactured
in part from xxxx manufactured in European countries, the
grindstone is not "wholly obtained or produced in the territory
of Canada and/or United States."
The second method through which an article can become an
originating good for CFTA purposes is for an article made of
foreign materials to be transformed in Canada and/or the United
States in accordance with General Note 3(c)(vii)(B)(2), HTSUS. A
transformation is evident when a change in tariff classification
occurs that is authorized by General Note 3(c)(vii)(R), HTSUS.
In this instance, all of the grindstones' components are
either wholly obtained or produced in Canada or the U.S., with
the exception of the xxxx, which is manufactured in Europe.
Therefore, for the grindstones to be considered originating goods
for CFTA purposes, they must be transformed in accordance with
General Note 3(c)(vii(B)(2), HTSUS. Specifically, the relevant
provision in General Note 3(c)(vii)(R), HTSUS, reads:
Change in Tariff Classification Rules
(13) Section XIII: Chapters 68 through 70.
(aa) A change from one chapter to another.
On importation into Canada, the xxxx is classified in
subheading xxxx, HTSUS, which provides for xxxx. The xxxx is
classified in subheading xxxx, which provides xxxx. The xxxx is
classified in subheading xxxx, HTSUS, and the xxxx is classified
in subheading xxxx, HTSUS. The emery is classified in subheading
2513.21.00, HTSUS, and the xxxx is classified in subheading xxxx,
HTSUS. These materials are combined to form a grindstone which
is classifiable in heading 6804, HTSUS. This is a change in
classification which results in a recognized transformation under
the CFTA. Therefore, the grindstone would be considered of
Canadian origin for purposes of the CFTA and would be entitled to
preferential treatment under the CFTA.
HOLDING:
The grindstones are classified in subheading 6804.22.40,
HTSUS, if they are in the shape of wheels. If the grindstones
are in the shape of bricks, they are classified in subheading
6802.22.60, HTSUS. The grindstones are considered originating
goods for CFTA purposes in accordance with General Note
3(c)(vii)(b)(2) and General Note 3(c)(vii)(R). They are entitled
to the CFTA tariff preferences for goods classified in the above
subheadings, upon compliance with all applicable regulations.
The protest should be granted in full. A copy of this
decision should be attached to the Customs Form 19 and mailed to
the protestant as part of the notice of action on the protest.
Sincerely,
John Durant, Director
Commercial Rulings Division