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HQ 956628



August 25, 1994

CLA-2 CO:R:C:M 956628 DWS

CATEGORY: CLASSIFICATION

TARIFF NO.: 6805.30.10

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

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