HQ 957353: Protest 1703-94-100121; abrasive strands; nylon plastic, sand, silicon carbide/aluminum oxide; other agglomerated abrasive millstones, grindstones, grinding wheels; EN 68.04; 6805.30.50; other natural or artificial abrasive powder or grain, on a base of other materials; EN 68.05; base; HRL 955020; HRL 956788; an established and uniform practice; 315(d), Tariff Act of 1930; Heraeus-Amersil, Inc.; Strum, A Manual of Customs Law; H. Reeve Angel & Co., Inc; Siemens America, Inc., et al; Washington Handle Co.

Native CBP ruling rendition. Applicability is fact-specific; modification/revocation relationships and original publisher date are retained. Publisher sentinel year0001 means unknown date, not a historical legal adoption.

                            HQ 957353
                          July 14, 1995
CLA-2 R:C:M 957353 KCC

CATEGORY:  Classification

TARIFF NO.:  6804.22.60

District Director
U.S. Customs Service
1 E. Bay Street
Room: 104
Savannah, Georgia 31401

RE:  Protest 1703-94-100121; abrasive strands; nylon plastic, sand, silicon carbide/aluminum
     oxide; other agglomerated abrasive millstones, grindstones, grinding wheels; EN 68.04;
     6805.30.50; other natural or artificial abrasive powder or grain, on a base of other
     materials; EN 68.05; base; HRL 955020; HRL 956788; an established and uniform
     practice; 315(d), Tariff Act of 1930; Heraeus-Amersil, Inc.; Strum, A Manual of
     Customs Law; H. Reeve Angel & Co., Inc;  Siemens America, Inc., et al; Washington
     Handle Co.

Dear District Director:

     This is in regards to Protest 1703-94-100121 concerning the tariff classification of
abrasive strands under the Harmonized Tariff Schedule of the United States (HTSUS).  Samples
were submitted for our examination.  Further information obtained at a meeting on March 20,
1995, and in additional submissions dated March 29, and May 19, 1995, were taken into
consideration in rendering this decision.

FACTS:

     The abrasive strands are used as abrasive grinding chips for polishing and deburring metal,
or cleaning and smoothing ceramics.  Each strip is approximately 48 inches long and can range in
diameter from 1/64 of an inch to 1/8 of an inch.  They may be round or rectangular in cross
section.  Each strand consists of nylon, sand, and silicon carbide or aluminum oxide.  These
ingredients are melted together, extruded, cooled and cut to the size.  The nylon bonds the
ingredients together.

     The entries of the abrasive strands were liquidated starting on July 15, 1994, under
subheading 6804.22.60, HTSUS, as other agglomerated abrasive millstones, grindstones, grinding
wheels and the like.  In a protest, timely filed on October 6, 1994, the protestant contends that the
abrasive strands are properly classified under subheading 6805.30.50, HTSUS, as other natural or
artificial abrasive powder or grain, on a base of other materials.

     The competing subheadings are as follows:

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.

6805.30.50     Natural 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...On a base of other materials...Other.

ISSUE:

     Are the abrasive strands classified as other agglomerated abrasive millstones, grindstones,
grinding wheels and the like under subheading 6804.22.60, HTSUS, or as other natural or
artificial abrasive powder or grain, on a base of other materials under subheading 6805.30.50,
HTSUS?

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 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; the heading includes, for example, tools such as buff
     sticks, made by permanently fixing abrasive paper or cloth onto blocks or strips of wood,
     etc.  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 plastic; also for
     smoothing or polishing varnished or lacquered surfaces, or for sharpening card clothing.

     After throughly examining heading 6804 and 6805, HTSUS, and EN 68.04 and EN 68.05,
we are of the opinion that the abrasive strands are classified under heading 6804, HTSUS, as
other agglomerated abrasive millstones, grindstones, grinding wheels and the like.  EN 68.04
describes the manufacturing process of the abrasive strands.  EN 68.04 states that agglomerated
grinding wheels, etc., are made by mixing ground abrasive with binders such as less rigid
cementing materials, i.e., plastic, which is moulded to shape, dried, cured and trimmed to size and
shape.  Like the manufacturing process described in EN 68.04, the abrasive strands are
manufactured with nylon plastic, sand and silicon carbide or aluminum oxide which are melted
together, extruded, cooled and cut to size.  As the protestant has stated, the nylon plastic is the
bonding material in the abrasive strands.

     The abrasive strands are considered agglomerated abrasive material.  Customs has stated
that a crucial factor which makes a product an agglomerated product is the uniform blending of
the product and a binding agent.  See, Headquarters Ruling Letter (HRL) 955020 dated February
1, 1995, and HRL 956788 dated November 1, 1994, which classified agglomerated stone picture
frames under subheading 6810.99.00, HTSUS, as other articles of artificial stone.  In this case, the
abrasive material and nylon plastic binder are uniformly blended for extrusion into strands so that
the abrasive material is uniformly dispersed throughout the binder.  Therefore, the abrasive
strands are considered agglomerated abrasive material.  

     Additionally, EN 68.04 states that grinding wheels, heads, discs, points, etc., will be used
for trimming, polishing, sharpening, trueing and in some cases for the cutting of metals, stone,
glass, plastics, ceramics, rubber, leather, mother of pearl, ivory, etc.  As the protestant has stated,
the abrasive strands are used for polishing and deburring metal, and for cleaning and smoothing
ceramics.  Therefore, although not in the shape of a millstone, grindstone or grinding wheel at the
time of importation, the abrasive strands are used for the same purpose as the millstones,
grindstones and grinding wheels under heading 6804, HTSUS.  Heading 6804, HTSUS, is not
limited solely to millstones, grindstones and grinding wheels.  We note that heading 6804,
HTSUS, specifically states "millstones, grindstones, grinding wheels and the like."  In this case,
we are of the opinion that the abrasive strands are considered like products of the millstones,
grindstones, and grinding wheels.  They are used for polishing and deburring metal and cleaning
and smoothing ceramics and their manufacturing process is described in EN 68.04.  Therefore, we
are of the opinion that they are specifically provided for under subheading 6804.22.60, HTSUS,
as other agglomerated abrasive millstones, grindstones, grinding wheels and the like.

     The protestant contends that the abrasive strands are classified under subheading
6805.30.50, HTSUS, as other natural or artificial abrasive powder or grain, on a base of other
materials.  To be classified under heading 6805, HTSUS, the abrasive strands must be natural or
artificial abrasive powder or grain on a base of other materials.  The abrasive strands are made of
abrasive material, i.e., silicon carbide or aluminum oxide, and sand, uniformly dispersed
throughout nylon plastic.  However, the nylon plastic is not a base but is actually part of the
agglomerated abrasive material.  Therefore, the abrasive strands are not classifiable under
subheading 6805.30.50, HTSUS.

     The protestant has stated that it competes against the type of products described in EN
68.05 and that its product is unique with only one other similarly produced product as a
competitor.  However, its product is not described under heading 6805, HTSUS, and therefore, is
not classifiable under that tariff provision.


     Protestant has stated that "an established and uniform practice" has developed with
respect to the classification of the abrasive strands.  The Unites States courts have long
recognized that the Customs Service has and does establish uniform practices in regard to the
treatment of goods coming into this country.  A uniform practice may be established, inter alia, by
actual uniform treatment of goods by the various ports.  See, Heraeus-Amersil, Inc. V. United
States, 8 CIT 329, 600 F.Supp. (1984) and 315(d), Tariff Act of 1930, as amended.  Established
practice must be shown by positive evidence.  Strum, A Manual of Customs Law (1993), 52.4. 
It is not established by the rulings of one or two collectors [ports] as to a few shipments...."  Id.
citing, inter alia, United States v. H. Reeve Angel & Co., Inc.  33 CCPA 114, C.A.D. 324
(1946), cert. den. 328 U.S. 935 (1946).

     The protestant has not established the existence of a uniform and established practice by
merely relying on the treatment of its merchandise at a few ports of entry.  We have reviewed the
treatment of protestant's merchandise since 1988 and determined that 28 entries were made under
subheading 6805.30.5000, HTSUS, in three ports.  Of these entries, 6 have been disputed by
Customs, 5 of which are the subject of this protest.  More substantial treatments of entries have
not resulted in the finding of uniform and established practices, e.g., Id. (2 importers' entries at 2
ports); Siemens America, Inc., et al .v. United States, 2 CIT 136, affirmed 692 F. 2d 1382
(1981)(a classification ruling letter and 100 subsequent entries); Washington Handle Co. v. United
States, 34 CCPA 80 (1946) (28 shipments at 2 ports).

HOLDING:

     The abrasive strands are classified under subheading 6804.22.60, HTSUS, as other
agglomerated abrasive millstones, grindstones, grinding wheels and the like.  The protest should
be DENIED.

     In accordance with Section 3A(11)(b) of Customs Directive 099 3550-065 dated August
4, 1993, Subject:  Revised Protest Directive, this decision and attachment, 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