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HQ 555200

August 25, 1989

CLA-2-CO:R:C 555200 RA


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.


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.


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?


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.


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.


John Durant, Director

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