CLA-2 CO:R:C:M 956628 DWS
District Director
U.S. Customs Service
55 Erieview Plaza
Plaza Nine Building, 6th Floor
Cleveland, OH 44114
RE: Protest 4103-94-100234; Abrasive Wheels, Rollers, and Rings;
HQs 951607, 954857, and 955223; NY 875045; Explanatory Note
68.05; 6805.10.00; 6805.30.50
Dear District Director:
The following is our decision regarding Protest 4103-94-
100234 concerning your action in classifying and assessing duty
on Lipprox abrasive wheels, rollers, and rings under the
Harmonized Tariff Schedule of the United States (HTSUS).
FACTS:
The merchandise consists of Lipprox abrasive wheels,
rollers, and rings (Type R2). The merchandise is formed by
placing abrasive material on a base of nonwoven nylon. The
nylon-based abrasive material is then glued onto a solid base in
the form of a wheel, roller, or ring. The protestant stresses
that the merchandise exists in a "three dimensional" form.
The merchandise was entered under subheading 6805.30.50,
HTSUS, as natural or artificial abrasive grains, on a base of
other materials. The entry was liquidated on November 12, 1993,
under subheading 6805.30.10, HTSUS, as articles wholly or partly
coated with abrasives, in the form of sheets, strips, disks,
belts, sleeves or similar forms. The protest was timely filed on
February 9, 1994.
The subheadings under consideration are as follows:
6805.30.10: [n]atural or artificial abrasive powder or
grain, 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:
[o]n a base of other materials: [a]rticles
wholly or partly coated with abrasives, in the
form of sheets, strips, disks, belts, sleeves or
similar forms.
The general, column one rate of duty for goods classifiable
under this provision is 2.5 percent ad valorem.
6805.30.50: [n]atural or artificial abrasive powder or
grain, 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:
[o]n a base of other materials: [o]ther.
Goods classifiable under this provision receive duty-free
treatment.
ISSUE:
Whether the Lipprox abrasive wheels, rollers, and rings are
classifiable under subheading 6805.30.10, HTSUS, as articles
wholly or partly coated with abrasives, in the form of sheets,
strips, disks, belts, sleeves or similar forms, or under
subheading 6805.30.50, HTSUS, as natural or artificial abrasive
grains, on a base of other materials.
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 provides that classification is determined
according to the terms of the headings and any relative section
or chapter notes.
Customs and the protestant agree that the merchandise is
classifiable under heading 6805, HTSUS. See HQs 951607, dated
July 13, 1992, and 954857 and 955223, dated December 8, 1993. In
HQs 951607 and 954857, similar abrasive wheels were held to be
classifiable under subheading 6805.30.10, HTSUS. In HQ 955223,
an abrasive disc, consisting of textile strips arranged around a
spherical aluminum hub, was held to be classifiable under
subheading 6805.10.00, HTSUS, as natural or artificial abrasive
grains, on a base of woven textile fabric only.
However, the protestant claims that only "two dimensional"
objects are classifiable under subheading 6805.30.10, HTSUS, and
"three dimensional" objects, such as the subject merchandise, are
classifiable under subheading 6805.30.50, HTSUS. We disagree.
Neither the terms of heading 6805, HTSUS, nor Harmonized
Commodity Description and Coding System Explanatory Note 68.05
distinguish goods based upon their dimensional shape.
In understanding the language of the HTSUS, the Harmonized
Commodity Description and Coding System Explanatory Notes may be
utilized. The Explanatory Notes, although not dispositive or
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).
In part, Explanatory Note 68.05 (p. 901), states that:
[t]his 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
bonding substance. . .
In HQs 951607 and 954857, as stated above, we held that
"three dimensional" abrasive wheels, similar to those in this
protest, are classifiable under subheading 6805.30.10, HTSUS.
Therefore, it is our position that the subject merchandise is in
similar forms to those shapes listed under subheading 6805.30.10,
HTSUS, and are so classifiable.
The protestant claims that NY 875045, dated June 16, 1992,
is dispositive as to the classification of the subject
merchandise. In that ruling, an abrasive cellulose sponge was
held to be classifiable under subheading 6805.30.50, HTSUS. The
sponge is distinguishable from the wheels, rollers, and rings
because it is not in a form similar to sheets, strips, disks,
belts, or sleeves. Therefore, it is our position that NY 875045
is inapplicable to the classification of the subject merchandise.
HOLDING:
The Lipprox abrasive wheels, rollers, and rings are
classifiable under subheading 6805.30.10, HTSUS, as articles
wholly or partly coated with abrasives, in the form of sheets,
strips, disks, belts, sleeves or similar forms.
The protest should be DENIED in full. 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, Freedom
of Information Act, and other public access channels.
Sincerely,
John Durant, Director
Commercial Rulings Division