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HQ 555744

January 28, 1991

CLA-2 CO:R:C:V 555744 GRV


TARIFF NO.: 9802.00.50

Gunter von Conrad, Esq.
Barnes, Richardson & Colburn
1819 H Street, N.W.
Washington, D.C. 20006

RE: Applicability of partial duty exemption under HTSUS subhead- ing 9802.00.50 to bundles of synthetic, man-made, tapered nylon bristles tipped and/or flagged and variously dyed in Mexico to be used in the manufacture of paint brushes. Alterations;multiple operations;Dolliff & Company, Inc (1979);Guardian Industries Corp (1982);C.J. Tower & Sons of Niagara, Inc. (1960);Royal Bead Novelty Co. (1972);555124; T.D. 56462(2);555478;T.D. 70-76(1);USITC publications.

Dear Mr. Conrad:

This is in response to your letters of September 27, and October 17, 1990, on behalf of MFC Corp., requesting a ruling on the applicability of subheading 9802.00.50, Harmonized Tariff Schedule of the United States (HTSUS), to bundles of nylon bristles from Mexico. Catalogue material, affidavits and samples of the bristles representing their conditions as exported and imported were submitted for examination. In addition, information provided in a meeting at Customs Headquarters on November 15, 1990, was also considered in this ruling.


The present ruling request follows-up a previous request for a ruling dated May 4, 1989, to which we responded by information letter (555406) dated April 27, 1990. In our April 27, 1990, letter, we informed MFC that the partial duty exemption available under HTSUS subheading 9802.00.50 was applicable only to completed articles, and did not extend to foreign processing operations which constituted a necessary step in the preparation or manufacture of finished articles. Based on the information provided at that time, we found that the bunches of raw nylon bristles had no commercial use until after the foreign operations of tipping, flagging and/or dyeing were performed, and that, even then, the bristles had to be placed in metal paint brush receptacles in the U.S. before they attained a commercial status. Accordingly, we stated that this circumstance indicated that the exported bristles were not completed articles when exported and that they would not be eligible for entry under HTSUS subheading 9802.00.50.

You claim that the preceding request was incomplete and that the merchandise under consideration is tapered nylon fibers that are used in the further manufacture of paint brushes. You state that neither the synthetic fibers nor the finished paint brushes are manufactured by your client. The bristles are received by your client from a third party in individual bristle bundles (temporarily bound at the bottom and middle of each bundle with rubber bands) that are bulk-packaged in 100 pound boxes. In this condition, the bristles are exported to Mexico. Abroad, an individual bristle bundle is placed in a chuck, which, in turn, is placed in a tipping/flagging machine. This machine either tips the bristles, causing the ends to become more pointed by passing them over a grinding stone, or flags the bristles, causing the ends to split by bringing them in contact with knives when they pass over the grinding stone. Sometimes the nylon bristles are also dyed. The merchandise is then returned to the U.S. in the same 100 pound boxes in which it was exported, and is ready to be made into paint brushes; no further working of the bristles is required.

Concerning the condition of the bristles at the time of their exportation to Mexico, you state that the nylon bristles are ready to be incorporated into finished paint brushes, and that both the "altered" and "unaltered" bristles are used in the manufacture of paint brushes. Further, your client attests that the factors which affect the quality of bristles include the raw, synthetic material used to extrude the bristles, as well as the taper, thickness, length, and durability of the extruded bristles, all of which are established during the original manufacture of the synthetic bristles.

Concerning the tipping, flagging and dyeing operations, you state that they constitute mere cosmetic changes in the merchandise--ostensibly to give them the appearance of natural hog bristles so as to enhance their marketability. Your client attests that the essential characteristics of the bristles are established during their original manufacture and that these operations create neither a price nor qualitative break point in the bristle or brush industry. Further, affidavits submitted claim that the bundles of bristles are traded as a commercially recognized commodity within the brush industry and that the dyeing, tipping and flagging operations are not required to complete the bundles for their intended use. The bristle fibers as exported and imported are classifiable under HTSUS subheading 5404.10.20, which provides for synthetic, man-made monofilaments.

No government, industry or independent institutional, e.g., American Society for Testing Materials (ASTM), standards appear to be applicable to the imported products.


Whether the synthetic, man-made nylon bristles qualify for the partial duty exemption under HTSUS subheading 9802.00.50 when returned to the U.S.


Articles returned to the U.S. after having been exported to be advanced in value or improved in condition by repairs or alterations may qualify for the partial duty exemption under HTSUS subheading 9802.00.50, provided the foreign operation does not destroy the identity of the exported articles or create new or different articles through a process of manufacture. However, entitlement to this tariff treatment is precluded where the exported articles are incomplete for their intended use prior to the foreign processing, Guardian Industries Corp. v. United States, 3 CIT 9 (1982), or where the foreign operation constitutes an intermediate processing operation, which is performed as a matter of course in the preparation or the manufacture of finished articles. Dolliff & Company, Inc., v. United States, C.D. 4755, 81 Cust.Ct. 1, 455 F.Supp. 618 (1978), aff'd, C.A.D. 1225, 66 CCPA 77, 599 F.2d 1015 (1979). Articles entitled to this partial duty exemption are dutiable only upon the cost or value of the foreign repairs or alterations when returned to the U.S., provided the documentary requirements of 19 CFR 10.8 are satisfied.

In the referenced Dolliff case, certain dacron polyester fabrics--greige goods--were exported and subjected to multiple processing operations abroad, including dyeing. The finished fabric that was returned to the U.S. was denied the partial duty exemption for alterations abroad because it was determined that the dyeing and numerous other processing steps were all necessarily undertaken to produce the finished fabric.

In an earlier alterations case, C.J. Tower & Sons of Niagara, Inc. v. United States, C.D. 2208, 45 Cust.Ct. 111 (1960), cotton drills--also greige goods--were exported and subjected to multiple operations, including dyeing. The cotton cloth that was returned to the U.S. was similarly denied the partial duty exemption for alterations abroad because it was determined that the merchandise exported was changed in color, width, length, porosity, in the distribution of the threads in the weave, in weight, tensile strength, texture, and suppleness by the foreign processing. In holding that the foreign processing constituted more than an alteration, the court found that the returned merchandise was a new and different article, having materially different characteristics and a more limited and specialized use.

Both of these decisions were decided after Amity Fabrics, Inc. v. United States, C.D. 2104, 43 Cust.Ct. 64, 305 F.Supp. 4 (1959), another alterations case which dealt with the dyeing, albeit redyeing, of fabric. In Amity, unmarketable, pumpkin- colored cotton twill-back velveteen was exported to be redyed a black color. The court determined that the dying operation was a change which rendered the fabric marketable and that this improvement in the exported fabric advanced its value and improved its condition commercially, and found that such change constituted an alteration under the statute and Customs Regulations. As the parties had stipulated that the redyeing in no way changed the quality, texture, or character of the material, the court concluded that the identity of the goods was not lost or destroyed by the dying process; no new article was created; there was no change in the character, quality, texture, or use of the merchandise; it was merely changed in color. Amity was cited in both C.J. Tower and Dolliff and was also discussed in Royal Bead Novelty Co. v. United States, C.D. 4353, 68 Cust.Ct. 154, 342 F.Supp. 1394 (1972).

In Royal Bead, uncoated glass beads were exported so that they could be half-coated with an Aurora Borealis finish which imparted a rainbow-like luster to the half-coated beads. Guided by Amity, the court found that the identity of the beads was not lost or destroyed in the coating process and that no new article was created. Moreover, there was no change in the beads' size, shape, or manner of use in the making of articles of jewelry (as the plaintiff testified that both uncoated and half-coated beads were used interchangeably). The sole change was in the finish, which did not change the quality, texture, or character of the exported beads. Accordingly, the court concluded that application of the Aurora Borealis finish constituted an alteration within the intendment of item 806.20, Tariff Schedules of the United States (TSUS) (the precursor tariff provision to HTSUS subheading 9802.00.50).

In Headquarters Ruling Letter (HRL) 555124, (abstracted as C.S.D. 89-38(11) and C.S.D.89-9(6), 23 Cust.Bull. ___ (1989)), we considered a brushing operation performed on fabric used in the making of women's raincoats and found that while the brushing process imparted a slightly different appearance to the fabric, it did not appear to significantly change the quality, texture or character of the fabric. Accordingly, we held that the brushing operation constituted an "alteration" for purposes of the tariff provision.
In the present case, although the synthetic nylon bristles, like the greige fabric in both Dolliff and C.J. Tower, may be subjected to multiple operations, one of which is dyeing, we believe that the operations performed on the bristles, like the operations in Amity and Royal Bead, constitute acceptable alterations of the bristle merchandise. Concerning the dyeing operation, we find that the dyeing of bristles is distinguish- able from the dyeing of greige fabric for the reason that fabric in the greige is, by definition, unfinished merchandise requiring certain processing operations to render it suitable for its intended use. However, the record before us establishes that the nylon bristles are suitable for their intended use (incorporation into paint brushes) in their condition as exported, and, in fact, are so used. Therefore, we are persuaded that the dyeing of the bristles does not constitute an intermediate processing operation performed as a matter of course in the preparation or the manufacture of finished bristles. Moreover, as in Amity, the artificial color induced by dyeing in no way affects the quality, texture, character or performance characteristics of the bristles; the dyeing merely renders the bristles more marketable. As the samples submitted also show that the dyeing operation does not destroy the identity of the exported article or create a new or different article of commerce or appear to significantly change the quality, texture or character of the bristles, we find that the dyeing operation constitutes an "alteration" within the meaning of HTSUS subheading 9802.00.50.

Concerning tipping and flagging operations, these are akin to grinding and slitting operations, respectively, which we have held in other contexts to constitute either finishing operations performed on unfinished goods or which produce changes in the performance characteristics of the exported article so as to exceed an alteration for purposes of HTSUS subheading 9802.00.50. See T.D. 66-190(1), 101 Treas.Dec. 535 (1966) (grinding constitutes a finishing process) and HRL 058689 (December 20, 1978) (cutting/slitting operations produce changes in the performance characteristics of the polypropylene article exported). You claim that these operations are not required to complete the nylon bristles and that bristles not subjected to these operations are used in the further manufacture of paint brushes. Thus, you state that these operations constitute mere cosmetic changes in the merchandise designed to enhance marketability.

We note in this regard that the U.S. International Trade Commission (USITC), on the occasion of investigating the paint brush industry in connection with an antidumping petition submitted in 1985, indicated that these operations--tipping and flagging--improve the paint retention qualities of bristles subjected to these operations. USITC Pub. 1805 (January 1986), at pages 7, note 10, and A-4. However, as no industry standards are discoverable on this issue, which address whether these operations are required or whether they create a new or different product, we conclude that while these operations may be more than mere cosmetic changes, they do not result in any significant change in the quality, texture or character of the paint brush bristles. Nor do they appear to constitute intermediate processing operations in the manufacture of finished synthetic bristles per se, so far as the bristle industry is concerned. Accordingly, the tipping and flagging operations performed on the synthetic, nylon bristles here are deemed to constitute "alterations" within the meaning of HTSUS subheading 9802.00.50.


On the basis of the information and samples presented, it is our opinion that the flagging, tipping and dyeing operations variously performed on the exported bundles of synthetic, man- made nylon bristles constitute "alterations," as that term is used in HTSUS subheading 9802.00.50. Therefore, upon their return to the U.S. and compliance with the requirements of 19 CFR 10.8, the bristles will be entitled to classification under this tariff provision, with duty only on the value of the processing performed abroad.


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