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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

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