HQ 555580: Applicability of partial duty exemption under subheading 9802.00.80, HTSUS, to guide shoes imported from Mexico

us-cbp-cross-rulings-hq-555580HQ 555580: Applicability of partial duty exemption under subheading 9802.00.80, HTSUS, to guide shoes imported from MexicoGuidance

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 555580

                                    April 2, 1990

          CLA-2  CO:R:C:V  555580 LS

          CATEGORY:  Classification

          TARIFF NO.:  9802.00.80

          Mr. John W. Cain
          Cain Customs Brokers, Inc.
          421 Texano
          P.O. Box 150
          Hidalgo, Texas 78557

          RE:  Applicability of partial duty exemption under subheading
               9802.00.80, HTSUS, to guide shoes imported from Mexico

          Dear Mr. Cain:

               This is in response to your letter of January 6, 1990,
          requesting a ruling on the applicability of subheading
          9802.00.80, Harmonized Tariff Schedule of the United States
          (HTSUS), to guide shoes to be imported from Mexico.  Diagrams and
          literature regarding the product were submitted.

          FACTS:

               3D Border Industries is planning to import guide shoes on
          behalf of Halliburton Services.  A guide shoe is a part used in
          oil well cementing equipment.  It fits onto the end of a string
          of pipe casing after a well has been drilled.  The guide shoe is
          designed to direct the casing away from ledges to minimize
          sidewall caving and to guide the casing through hard shoulders
          and crooked holes.

               The components of the guide shoe are a premachined metal
          cylinder and concrete, both of U.S. origin.  In a telephone
          conversation with an attorney on my staff, you have stated that
          the inside of the metal cylinder is threaded on one end and that
          this threading is necessary to make the cylinder ready for the
          assembly of the guide shoe.  The threading allows the completed
          guide shoe to be fitted onto the bottom of the first joint of
          pipe casing.  Under the first fact situation you presented, the
          threading operation occurs in the U.S. before the metal cylinder
          is shipped to Mexico.  Under an alternative set of facts, the
          threading occurs in Mexico after the cylinder is exported from
          the U.S. and before the assembly of the guide shoe begins.  The
          concrete mix, which is exported from the U.S. in sacks, consists
          of class "C" cement, "20-40 mesh" sand, a friction reducer, and
          an air-entraining agent.  












                                        - 2 -


               The assembly process in Mexico consists of the following
          steps.  First, the premachined metal cylinder is degreased with a
          soap and water mixture.  It is then placed into a mold and
          transported to the pouring station.  The concrete is mixed with
          water and poured into the cylinder in the mold.  The filled mold
          is placed on a vibrating conveyor belt to expel air.  The
          concrete then cures at room temperature.  Next, the guide shoe is
          taken out of the mold and excess concrete is removed with a wire
          brush.  The mold is cleaned and prepared for reuse.  The guide
          shoe is then painted with waterbase red paint which is for
          purposes of rust protection when the guide shoes are stored
          outside.  Finally, the painted guide shoes are allowed to dry and
          are packaged for shipping.

          ISSUE:

               (1)  Whether the guide shoes, consisting of concrete and a
          metal cylinder threaded in the U.S., will qualify for the partial
          duty exemption under subheading 9802.00.80, HTSUS, when returned
          to the U.S.?

               (2)  Whether the guide shoes, consisting of concrete and a
          metal cylinder threaded in Mexico, will qualify for the partial
          duty exemption under subheading 9802.00.80, HTSUS, when returned
          to the U.S.?

          LAW AND ANALYSIS:

               Subheading 9802.00.80, HTSUS, provides a partial duty
          exemption for:

               [a]rticles assembled abroad in whole or in part of
               fabricated components, the product of the United States,
               which (a) were exported in condition ready for assembly
               without further fabrication, (b) have not lost their
               physical identity in such articles by change in form,
               shape or otherwise, and (c) have not been advanced
               in value or improved in condition abroad except by being
               assembled and except by operations incidental to the
               assembly process such as cleaning, lubricating and
               painting.

          All three requirements of subheading 9802.00.80, HTSUS, must be
          satisfied before a component may receive a duty allowance.  An
          article entered under subheading 9802.00.80, HTSUS, is subject to
          duty upon the full value of the imported assembled article, less
          the cost or value of the U.S. components, upon compliance with
          the documentary requirements of section 10.24, Customs
          Regulations (19 CFR 10.24).












                                        - 3 -


          I.  Guide shoes in which the metal cylinder component is threaded
              in the U.S.

               We must first determine whether the concrete and the metal
          cylinder threaded in the U.S. are "fabricated components, the
          product of the U.S."  Fabricated components subject to the duty
          exemption are provided for at 19 CFR 10.14(a), which states, in
          part, that:

               [t]he components must be in condition ready for assembly
               without further fabrication at the time of their exportation
               from the United States to qualify for the exemption. . . .
               Materials undefined in final dimensions and shapes, which
               are cut into specific shapes or patterns abroad are not
               considered fabricated components.

               The legislative history of this tariff provision makes it
          clear that the exemption applies to U.S.-made fabricated
          components which are of types designed to be fitted together with
          other components, and does not apply to chemical products, food
          ingredients, liquids, gases, powders, etc.  H.R. Rep. No. 342,
          89th Cong., 1st Sess. 49 (1965).

               The concrete mix consists primarily of cement and sand in a
          powder or granular form.  Thus, according to the legislative
          history, the concrete mix is a material expressly precluded from
          the benefits of subheading 9802.00.80, HTSUS.  See Headquarters
          Ruling Letter 555057 (March 15, 1990) (crushed diamonds, in
          granular form, constitute a powder within meaning of tariff
          provision and are not entitled to exemption).  Further, it is not
          exported in condition ready for assembly since it must first be
          mixed with water in Mexico before it can enter into the assembly
          operation.

               The metal cylinder which is threaded in the U.S. constitutes
          a "fabricated component, the product of the U.S.," as it is
          exported in a condition ready for assembly within the meaning of
          clause (a) of subheading 9802.00.80, HTSUS.  You have informed us
          that the cylinder must be threaded in order to be in a condition
          ready for assembly.

               For purposes of subheading 9802.00.80, HTSUS, the term
          "assembly" means the fitting or joining together of fabricated
          solid components.  19 CFR 10.16(a); C.J. Tower & Sons of Buffalo,
          Inc. v. United States, 62 Cust. Ct. 643, C.D. 3840, 304 F. Supp.
          1187 (1969).  Section 10.16(a), Customs Regulations (19 CFR
          10.16(a)), further provides:














                                        - 4 -


               The mixing or combining of liquids, gases, chemicals, food
               ingredients, and amorphous solids with each other or with
               solid components is not regarded as an assembly.

          However, the courts have held that this language of 19 CFR
          10.16(a), requires only that a component be a solid upon
          completion of the assembly process.  See C.J. Tower; Sigma
          Instruments, Inc. v. United States, 5 CIT 90, 565 F. Supp. 1036
          (1983), aff'd, 2 CAFC 24, 724 F.2d 930 (1984).  "[N]othing in the
          statute [or 19 CFR 10.16(a)] requires that whether a component is
          a solid be determined as of the instant of initial contact."
          Sigma, 724 F.2d at 931-932.

               In Sigma, U.S. terminal pins were incorporated into header
          assemblies by a transfer molding operation in Mexico.  A molding
          compound, exported to Mexico in rope form, was heated and
          transformed into a viscous state before being joined to the
          terminal pins.  At the completion of the transfer molding
          operation, the molding compound had substantially assumed a
          definitive solidification, size, and shape.  Through this process
          the terminal pins became permanently fixed in their designed
          configuration and spacing so that they could perform their
          intended function as electrical relays.  The court, relying upon
          C.J. Tower, found that the transfer molding operation constituted
          a permissible assembly within the purview of subheading
          9802.00.80, HTSUS, and that Customs should have granted an
          allowance in duty for the terminal pins.

               Applying the rule in C.J. Tower and Sigma, we find that the
          combined processes of pouring the concrete into the metal
          cylinder in a mold, vibrating the mold to expel air, curing the
          concrete at room temperature, and removing the resulting guide
          shoe from the mold, constitute an acceptable assembly operation
          for purposes of subheading 9802.00.80, HTSUS.  Although the
          concrete is in a viscous state when it first comes into contact
          with the metal cylinder, it becomes a solid upon completion of
          the combined assembly process.  Thus, the process results in the
          permanent joinder of two solids--the concrete and the metal
          cylinder--and constitutes an acceptable assembly operation.

               Section 10.14(a), Customs Regulations (19 CFR 10.14(a)),
          further provides, in part, that:

               Components will not lose their entitlement to the exemption
               by being subjected to operations incidental to the assembly
               either before, during, or after their assembly with other
               components.














                                        - 5 -


               Operations incidental to the assembly process are not
          considered further fabrication operations, as they are of a minor
          nature and cannot always be provided for in advance of the
          assembly operation.  19 CFR 10.16(a).  Examples of operations
          considered incidental to the assembly process are delineated at
          19 CFR 10.16(b).  However, any significant process, operation, or
          treatment whose primary purpose is the fabrication, completion,
          or physical or chemical improvement of a component precludes the
          application of the exemption under subheading 9802.00.80, HTSUS.
          See 19 CFR 10.16(c).

               Among the examples of operations incidental to the assembly
          process which are listed in 19 CFR 10.16(b) are:  cleaning;
          removal of grease; and the application of preservative paints or
          coatings.  Thus, the following operations which relate to the
          assembly of the guide shoes are considered operations incidental
          to the assembly process:  the preparatory step of degreasing the
          metal cylinder with a soap and water mixture; the cleaning of the
          mold after the assembly process; and the spray painting of the
          guide shoe after the assembly for purposes of rust protection.

               With respect to the packing prior to shipping, section
          10.16(f), Customs Regulations (19 CFR 10.16(f)), provides, in
          part, that an assembled article which otherwise qualifies for the
          exemption under subheading 9802.00.80, HTSUS, will not be
          disqualified by reason of having been packaged abroad.

               We find that the guide shoes which include as a component
          metal cylinders exported from the U.S. already threaded are
          eligible for the partial duty exemption under subheading
          9802.00.80, HTSUS.  The threaded metal cylinder is a fabricated
          component of U.S. origin which is in a condition ready for
          assembly without further fabrication, does not lose its physical
          identity in the assembly operation, and is not otherwise advanced
          in value or improved in condition except by assembly operations
          and operations incidental thereto.  However, as explained above,
          no allowance may be made under subheading 9802.00.80, HTSUS, for
          the cost or value of the concrete mix.

          II.  Guide shoes in which the metal cylinder component is
               threaded in Mexico prior to assembly

               We next consider the alternative facts you have presented in
          which the unthreaded metal cylinder is exported from the U.S. and
          threaded in Mexico prior to being joined with the concrete.
          Regarding the concrete mix, we apply the same analysis set forth
          in Part I and find that it is precluded from the benefit of
          subheading 9802.00.80, HTSUS.













                                        - 6 -


               The metal cylinder which is unthreaded when exported from
          the U.S. does not satisfy clause (a) of subheading 9802.00.80,
          HTSUS, because it is not "in condition ready for assembly without
          further fabrication."  As stated in the facts above, the
          threading is necessary in order to allow the completed guide shoe
          to be attached to the bottom of the first joint of the pipe
          casing.  Therefore, the metal cylinder is not ready for assembly
          into the guide shoe until it is threaded.

               Whether a particular foreign process constitutes "further
          fabrication" within the meaning of subheading 9802.00.80, HTSUS,
          depends upon the facts of the particular case.  Zwicker Knitting
          Mills v. United States, 82 Cust. Ct. 34, C.D. 4786, 469 F. Supp.
          727 (1979), aff'd, 67 CCPA 37, C.A.D. 1240, 613 F.2d 295 (1980).
          In Samsonite Corp. v. United States, 12 CIT ___, 702 F. Supp. 908
          (1988), aff'd, 8 Fed Cir. ___, 889 F.2d 1074 (1989), straight
          strips of U.S. steel were exported to be assembled into luggage
          bags.  Once abroad, the strips were bent by machine into a form
          analogous to a square-sided letter C and subjected to other
          operations prior to being assembled into the luggage bags.  Since
          the straight strips of steel could not be placed immediately into
          the assembly of the luggage bags without the bending operation,
          the court found that they were not exported in condition ready
          for assembly.  The court noted that, without the bending
          operation, the original strips as exported could not serve their
          ultimate function as part of the frame of the luggage.  Thus, the
          bending and shaping of the steel strips was a fabrication, within
          the meaning of subheading 9802.00.80, HTSUS.  Similarly, in the
          instant case, the process of cutting threads inside the metal
          cylinder in Mexico constitutes a further fabrication because,
          absent the threading, the metal cylinder could not serve its
          function of allowing the guide shoe to be attached to the pipe.
          Thus, the unthreaded metal cylinder is an incomplete component as
          exported.

               Since neither the metal cylinder nor the concrete mix meets
          the requirements of clause (a) of subheading 9802.00.80, HTSUS,
          we find that the guide shoe is not eligible for the partial duty
          exemption under subheading 9802.00.80, HTSUS, when returned to
          the U.S.

          HOLDING:

               The guide shoes, consisting of concrete and a metal cylinder
          threaded in the U.S., will be eligible for the partial duty
















                                        - 7 -


          exemption under subheading 9802.00.80, HTSUS, when returned to
          the U.S., upon compliance with the documentary requirements of 19
          CFR 10.24.  The processes performed in Mexico on the metal
          cylinder and concrete are considered acceptable assembly
          operations or operations incidental to the assembly process.  An
          allowance in duty is permitted for the cost or value of the metal
          cylinder which is a U.S. component exported in condition ready
          for assembly.  However, no allowance may be made for the cost or
          value of the concrete mix because it is not a fabricated
          component of a type designed to be fitted together with other
          components.

               The guide shoes, consisting of concrete and a metal cylinder
          which is unthreaded when exported from the U.S. and then threaded
          in Mexico prior to assembly, are not eligible for the partial
          duty exemption under subheading 9802.00.80, HTSUS, when returned
          to the U.S.  The unthreaded metal cylinder is not exported in a
          condition ready for assembly without further fabrication.  For
          the reason stated above, the concrete mix is also not a
          fabricated component subject to the exemption.

                                       Sincerely,



                                       John Durant, Director
                                       Commercial Rulings Division




























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