HQ 087651: Request for reconsideration; mixed brush bristles

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 087651
                        October 29, 1990



CLA-2  CO:R:C:G  087651  JS

CATEGORY:  Classification

TARIFF NO.:  5404.10.2090

Paul Goldin
S. Herlich Co., Ltd.
6640 De L'Esplanade Ave.
Montreal, Quebec H2V4L5
Canada

RE:  Request for reconsideration; mixed brush bristles

Dear Mr. Goldin:

     By letter dated June 29, 1990, you request a
reconsideration, in part, of NY 852325 (April 24, 1990) which
classified mixed brush bristles under the Harmonized Tariff
Schedule of the United States Annotated ("HTSUSA").

FACTS:

     Although no samples were provided with the present request,
and you did not provide a clear indication as to which bristle
"arrangement" you wished us to reconsider, we will assume the
merchandise at issue is the mixture of 80 percent polypropylene
and 20 percent horsehair bristles, of approximately 7 1/2 inches
in length, which was inspected by Customs officials pursuant to
your original request (dated April 20, 1990).  In the letter of
April 20 you mention that various percentages (ranging from 20-90
percent) of the synthetic bristle will be supplied to U.S.
manufacturers.  Despite the possible variances, this decision
will be limited to the 80/20 mixture specifically addressed in
your letter.  The ruling issued by Customs (NY 852325) assumed
that the polypropylene monofilament measured 67 decitex or more
and that no cross-sectional dimension exceeded 1 millimeter.  We
will abide by that assumption in the present case.

     The synthetic bristles are produced in the United States,
and exported to Canada where they are combed and mixed (or
"arranged," as you prefer) with horsehair bristles.  The
synthetic monofilament are valued at $1.10 per pound and the


horsehair is valued at $3.50 per pound.  The bristles are wrapped
in paper bands for sale as raw material to the broom and brush
industry in the United States.

     You state that the horsehair, rather than the synthetic
bristles, impart a greater significance to the raw brush
material for several reasons, including but not limited to the
greater flexibility, increased moisture absorbency, heat
resistance and non-hazardous nature of the horsehair.

ISSUE:

     1) Whether an 80 percent polypropylene/20 percent horsehair
mix of bristles has an essential character of horsehair, and is
therefore classifiable under 0504, HTSUSA.

     2) Whether the brush bristles are eligible for the duty
exemption available under subheading 9801.00.10, HTSUS when
imported into the United States.

LAW AND ANALYSIS:

ISSUE 1:

     Classification of merchandise under the HTSUSA is in
accordance with the General Rules of Interpretation (GRI), taken
in order.  GRI 1 provides that the classification shall be
determined according to the terms of the headings and any
relevant section or chapter notes.  Where goods cannot be
classified solely on the basis of GRI 1, and if the heading and
legal notes do not otherwise require, the remaining GRI may be
applied, in the order of their appearance.

     GRI 3 states, in pertinent part:

     When by application of Rule 2(b) or for any other reason,
     goods are, prima facie, classifiable under two or more
     headings, classification shall be affected as follows:

     (a)  The heading which provides the most specific
          description shall be preferred to headings providing a
          more general description.  However, when two or more
          headings each refer to part only of the materials or
          substances contained in mixed or composite goods...
          those headings are to be regarded as equally specific
          in relation to those goods, even if one of them gives a
          more complete or precise description of the goods.

     The mixed brush bristles at issue consist of both man-made
and animal hairs, classifiable in headings 5404 and 0503, HTSUSA,
respectively.  Since they are thus separately provided for in the
Nomenclature, GRI 3(b) applies as follows:



     (b)  Mixtures, composite goods consisting of different
     materials or made up of different components...which
     cannot be classified by reference to 3(a), shall be
     classified as if they consisted of the material or
     component which gives them their essential character.

     Explanatory Note VIII to GRI 3(b) states that:

     The factor which determines essential character will vary as
     between different kinds of goods.  It may, for example, be
     determined by the nature of the material or component, its
     bulk, quantity, weight or value, or by the role of a
     constituent material in relation to the use of the goods.

     In this case, the synthetic monofilaments make up 80
percent, by weight, of the brush material.  The total cost of the
synthetic material is therefore greater than the total cost of
the horsehair, in a package of bristles made up of 80 percent of
the former and 20 percent of the latter.  The essential character
of such a mixture is deemed to be the synthetic material,
polypropylene, where the polypropylene is in chief bulk, weight
and value of the bristle mixture.  See HQ 084709 (August 24,
1989), essential character of rattan and broomcorn broom is
rattan where rattan is chief weight and bulk, and broomcorn is
chief value and 10 percent stronger)  Therefore, despite the
significant advantages of incorporating natural horsehair bristle
into the raw material intended for brush manufacture, the
presence of 80 percent by weight of synthetic bristles imparts
the essential character of that raw material.

     Furthermore, the letter sent to you by the Canadian
Department of National Revenue (Customs and Excise) dated January
11, 1989, specifically states that only "[s]uch products
(horsehair mixtures) when containing 50 percent or more of
horsehair by weight are classified under tariff item
0503.10.00..." (emphasis added).  It is clear that the present
mixture does not qualify as being of essential character
horsehair for purposes of classification under heading 0503,
HTSUSA.

ISSUE 2:

     Subheading 9801.00.10, HTSUS, provides for duty-free entry
of U.S. products that are exported and returned without having
been advanced in value or improved in condition by any means
while abroad.  Articles satisfying the above conditions of the
statute will be afforded duty-free treatment, provided the
documentary requirements of section 10.1, Customs Regulations (19
CFR 10.1), are met.  While some change in the condition of the
product while it is abroad is permissable, operations which
either advance the value or improve the condition of the
exported product render it ineligible for duty free entry upon

return to the United States.  See, Border Brokerage Company Inc.
v. United States, 65 Cust.Ct. 50, C.D. 4052, 314 F.Supp. 788
(1970), appeal dismissed, 58 CCPA 165 (1970).

     We have previously held that brush bristles which have been
processed by blending and combing operations have been advanced
in value and improved in condition.  See, Headquarters Ruling
Letter (HRL) 085990 dated March 15, 1990 (bristles consisting of
polypropylene monofilaments, istle, or horsehair which are
blended, combed, and wrapped in Mexico result in an advancement
in value and improvement in condition); and HRL 069279 dated
January 27, 1982 (U.S. origin polypropylene filaments blended
with tampico filaments after they have been cut to length are an
advancement in value).

     In this case, the mixing/blending and combing operations
performed on the U.S. origin polypropylene bristles are similar
to the facts in the prior rulings.  You state that a mixing/
blending operation is not the same type of operation used when an
arrangement or "put up as a layer" operation is performed.
Regardless of the exact terminology used, the fact remains that
foreign horsehair and U.S. filaments are combined together to
create bristles for a brush.  Furthermore, during this
combination operation, the combined filaments and horsehair are
combed in order to create the paralleled bristles necessary for a
brush.  The combining and combing operation advances the value
and improves the condition of the U.S. filaments since a new and
different article, brush bristles, are created.  Therefore, the
U.S. origin polypropylene bristles will be advanced in value and
improved in condition contrary to the requirements of subheading
9801.00.10, HTSUS.

HOLDING:

     As a result of the foregoing, the bristle mixture at issue
is classified under subheading 5404.10.2090, HTSUSA, which
provides for synthetic monofilament of 67 decitex or more and of
which no cross-sectional dimension exceeds 1 mm; strip and the
like (for example, artificial straw) of synthetic textile
materials of an apparent width not exceeding 5 mm: monofilament:
other, other, and dutiable at the rate of 7.8 percent ad valorem.
Accordingly, NY 852325 dated April 24, 1990, is affirmed.

     Articles which meet the definition "goods originating in the
territory of Canada" (see General Note 3(c)(vii)(B), HTSUSA) are
subject to reduced rates of duty under the United States-Canada
Free Trade Agreement Implementation Act of 1988.  If this
merchandise is thus included, the applicable rate of duty is 6.2
percent ad valorem.

     Furthermore, on the basis of the information submitted, the
U.S. polypropylene bristles will be advanced in value and


improved in condition abroad as a result of the combing and
mixing operation, such that the mixed brush bristles imported
into the U.S. will not qualify for the duty exemption available
under subheading 9801.00.10, HTSUS.

     The designated textile and apparel category may be
subdivided into parts.  If so, visa and quota requirements
applicable to the subject merchandise may be affected. Since part
categories are the result of international bilateral agreements
which are subject to frequent renegotiations and changes, to
obtain the most current information available, we suggest that
you check, close to the time of shipment, the Status Report On
Current Import Quotas (Restraint Levels), an issuance of the U.S.
Customs Service, which is updated weekly and is available at your
local Customs office.

     Due to the changeable nature of the statistical annotation
(the ninth and tenth digits of the classification) and the
restraint (quota/visa) categories, you should contact your local
Customs Office prior to importing the merchandise to determine
the current applicability of any import restraints or
requirements.

                                   Sincerely,



                                   John Durant, Director
                                   Commercial Operations Division