HQ 555200: Applicability of subheading 9802.00.80, HTSUS, to certain refrigerator parts assembled in Mexico

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 555200

                         August 25, 1989

CLA-2-CO:R:C  555200 RA

CATEGORY: Classification

TARIFF NO.: 9802.00.80, HTSUS

Mr. John W. Cain
Cain Customs Brokers Inc.
P.O. Box 150
Hildago, Texas 78557

RE: Applicability of subheading 9802.00.80, HTSUS, to certain
    refrigerator parts assembled in Mexico

Dear Mr. Cain:

     This is in response to your letters of November 10, 1988 and
June 29, 1989, on behalf of the Whirlpool Corporation, requesting
rulings on the applicability of the provisions of subheading
9802.00.80, Harmonized Tariff Schedule of the United States
(HTSUS), which replaced item 807.00, Tariff Schedules of the
U.S., effective January 1, 1989, to various assemblies for
refrigerators processed in Mexico.

FACTS:

     You state that your client desires to import various parts
assembled from U.S. fabricated components and which you designate
as: (1) discharge lines assembly (part no. 1118873)(2) air duct
assembly (part nos. 1123849 and 1123848) (3) muffler tube
assembly (part no. 1118640) (4) muffler tube assembly (part no.
1107672)(5) tube and stem assembly (part no. 627855), and first
discharge lines assembly (part no. 1118875).  The operations
performed on the various parts during the assembly of the
finished products are described in your letters.

     In the case of the first discharge lines assembly, 1/4 inch
copper tubing is cut to a length of 25 3/8 inches by machine and
pierced where another tube will be brazed to it to form a "T"
junction.  The tubing is then sized and expanded by machine and
bent to a specific shape.  Another length of copper tubing 3 1/2
inches long is cut off by a machine and a saddle is formed at one
end and the other end is sized by machine before it is brazed at
a right angle to the other bent tube to form the finished part.


     The air duct assembly is used in a refrigerator to pass cold
air from the freezer to the refrigerator compartment. A strip of
foam seal is removed from its adhesive backing and attached to
the flange surface of the air duct component.  This component
consists of a white plastic rectangular molded part with an
opening in its center.

     The muffler tube assembly is made by producing a length of
5/16 inch copper tubing 7 inches long which is deburred at one
end and swaged at the other end by machine and then bent to
approximately a 140 degree angle.  A so-called muffler is brazed
to the unswaged end of the tube to form the finished part.

     The other muffler tube assembly is made by producing a piece
of 1/4 - inch copper tubing 3 3/4 inches in length by a cutoff
machine, deburring both ends by machine, placing dimples at both
ends for precise depth of insertion of the tubing, and finally
brazing a muffler on one end.  The tubing is not bent and
remains straight.

     The tube and stem assembly is made by cutting a 1/4-inch
copper tube to a length of 7 1/8 inches, deburring both ends;
bending it to a right angle, and brazing on one end a stem or
button-shaped portion.

     The other first discharge lines assembly is produced by
cutting a 1/4-inch copper tube to a length of 23-7/8 inches.  A
dimple is placed by machine on one end to assure insertion to a
precise depth inside another tube.  After one end of the tube is
deburred, it is bent into a hook shape, a saddle is formed on
one end, the other end is sized, and a 3 1/2-inch length of
5/16 - inch copper tubing is brazed on one end where a small hole
has been pierced by a machine.  A further slight inward bend is
made on this end of the longer tube.

ISSUE:

     Can an allowance in duty be made under subheading
9802.00.80, HTSUS, for parts of U.S. origin which are assembled
and processed as described?

LAW AND ANALYSIS:

     Subheading 9802.00.80, HTSUS, provides for articles
assembled abroad in whole or in part of fabricated components of
U.S. origin with no operations performed thereon except the
joining of the components and operations incidental thereto.  The
components must be exported in condition ready for assembly,
cannot lose their physical identity, and cannot be advanced in
value or improved in condition except by the assembly or
operations incidental thereto.  Duty is assessed on the appraised
value of the imported merchandise less the cost or value of the
U.S.-made components at the time they were exported.

     Section 10.16(a), Customs Regulations (19 CFR 10.16(a)),
states that the assembly operations may consist of any method
used to join or fit together solid components and may be
preceded, accompanied, or followed by operations incidental to
the assembly.  However, section 10.16(c), Customs Regulations (19
CFR 10.16(c)), provides that any significant process, operation,
or treatment other than assembly whose primary purpose is the
fabrication, completion, or physical improvement of a component
shall not be regarded as incidental to the assembly and shall
preclude the application of the exemption to such article.

     A bending process cannot be considered incidental to
assembly where it does more than adjust the article and results
in the creation of the component to be assembled, the essence of
which is its configuration. Samsonite Corporation v. U.S., Slip.
Op. 88-166, 702 F. Supp. 908 CIT (1988).  The court in that case
concluded that the statute and regulations do not cover a process
which was as necessary to the fabrication of the component as it
was to subsequent assembly thereof.  Applying this principle to
the instant cases, it is clear that bending the copper tubing to
a specific shape to create a component for the first discharge
lines assembly, one muffler tube assembly, the tube and stem
assembly, and the other first discharge lines assembly  is
sufficient to preclude the application of subheading 9802.00.80,
HTSUS, to these four components of the imported assemblies.

     In the case of the air duct assembly, which is made by
applying a strip of adhesive foam seal to the flange surface of
the air duct, a qualified assembly takes place and the exemption
provided for in subheading 9802.00.80, HTSUS, would be applicable
upon compliance with sections 10.11-10.24, Customs Regulations
(19 CFR 10.11-10.24).  The assembly operations in the case of the
other muffler tube assembly, when the copper tube is not bent
but merely cut to length, deburred, and dimpled before it is
attached to the muffler portion by brazing, would qualify for
the exemption under subheading 9802.00.80, HTSUS, upon compliance
with the regulations.  The cutting to length, deburring, and
dimpling would be considered incidental to assembly as these
operations do not create the components but are minor operations
essential for a proper assembly of the two components.


HOLDING:

     The bending of copper tubing to a specific shape to create a
component before assembly occurs will preclude the application of
the provisions of subheading 9802.00.80, HTSUS, to the component.
However, the joining of a copper tube to a muffler tube by
brazing, after being cut to length, deburred, and dimpled, is a
qualified assembly with incidental operations.  The attachment of
a strip of foam seal by an adhesive to the flange of an air duct
constitutes a valid assembly under the statute and applicable
regulations.

                               Sincerely,




                               John Durant, Director
                               Commercial Rulings Division