CLA-2 CO:R:C:V 555474 KAC

District Director of Customs
880 Front Street, Suite 5S9
San Diego, California 92188

RE: Internal Advice Request #IA 44/89 concerning the applicability of subheading 9802.00.80, HTSUS, to water mattress inserts.Fabrication;incidental operations; drilling;Mast;Miles;Surgikos;061429;555394

Dear Sir:

This is in response to your memorandum of July 14, 1989, forwarding a request for internal advice, initiated by Stein Shostak Shostak & O'Hara on behalf of Advanced Sleep Products, on the applicability of subheading 9802.00.80, Harmonized Tariff Schedule of the United States (HTSUS), to water mattress inserts. We regret the delay in responding to your request.


Advanced Sleep Products ships U.S.-origin polyethylene foam sheets, polyester fiber sheets, polyethylene bags, and polyethylene primex black film to Mexico for certain operations. From these components, Advanced Sleep manufactures thirty-three different insert units for water mattresses. The 1/2 inch or 1/8 inch sheet of polyethylene foam is the principal component to which the polyethylene bag is heat sealed and the polyester fiber sheets and urethane foam sheets are riveted. This whole structure floats inside the water mattress to achieve the necessary wave reduction properties. The operations performed in Mexico are:

(1) cutting and trimming the sheets; (2) drilling holes into the sheets; (3) heat sealing the polyethylene bags to the "float sheet"; (4) riveting the polyester fiber sheets to the "float sheet"; (5) riveting the urethane foam sheet to the "float sheet"; and (6) packing the insert.

In the drilling operation, sixty to seventy of the sheets are placed in a special wooden box which contains a lid with guide holes. A drill operator follows the pattern on the lid, drilling from twelve to forty-two holes in the sheets, which allow air and water to flow through the insert. After removing the lid, the operator runs a hand-held air drill with a door-knob drill bit through the sheets to make a three inch drain hole.

After the sheets are assembled with other components to create the mattress inserts, some of the inserts are assembled into mattresses in Mexico while others are returned to the U.S. The time required for the drilling operation is .04 seconds per sheet which is .0075 percent of the time required to complete the entire insert. When the inserts are assembled into the mattresses abroad the cost for the drilling of the inserts represents .00049 percent of the total labor cost of the mattress.


Whether the sheets incorporated into the water mattress inserts are eligible for the duty exemption available under subheading 9802.00.80, HTSUS, when imported into the U.S.


HTSUS subheading 9802.00.80 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, lubrication, and painting.

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

Section 10.14(a), Customs Regulations (19 CFR 10.14(a)), 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. Components will not loose their entitlement to the exemption by being subjected to operations incidental to the assembly either before, during, or after their assembly with other components.

Section 10.16(a), Customs Regulations (19 CFR 10.16(a)), provides that the assembly operation performed abroad may consist of any method used to join or fit together solid components, such as welding, soldering, riveting, force fitting, gluing, laminating, sewing, or the use of fasteners.

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 operations. However, any significant process, operation or treatment whose primary purpose is the fabrication, completion, physical or chemical improvement of a component precludes the application of the exemption under HTSUS subheading 9802.00.80 to that component. See, 19 CFR 10.16(c).

In United States v. Mast Industries, Inc., 515 F.Supp. 43, 1 CIT 188, aff'd, 69 CCPA 47, 668 F.2d 501 (1988), the court, in examining the legislative history of the meaning of "incidental to the assembly process," stated that:

[t]he apparent legislative intent was to not preclude operations that provide an "independent utility" or that are not essential to the assembly process; rather, Congress intended a balancing of all relevant factors to ascertain whether an operation of a "minor nature" is incidental to the assembly process.

The court then indicated that relevant factors included:

(1) whether the relative cost and time of the operation are such that the operation may be considered minor; (2) whether the operation is necessary to the assembly process; (3) whether the operation is so related to the assembly that it is logically performed during assembly; and (4) whether economic or other practical considerations dictate that the operation be performed concurrently with assembly.

The question presented is whether the drilling operation performed in Mexico is part of or incidental to the assembly of the water mattress inserts. Rudolph Miles v. United States, C.A.D. 1202, 65 CCPA 32, 567 F.2d 979 (1978), rev'g, C.D. 4689, 78 Cust.Ct. 35, 427 F.Supp. 417 (1977), concerned whether the burning of slots and holes into Z-beams in Mexico, so that wear and support plates and other components could be attached prior to the beams' joinder to boxcars, constituted a further fabrication of the beams. The court held that the burning of the holes and slots was concomitant with the assembly process and was not substantial enough to preclude the application of the precursor provision to HTSUS subheading 9802.00.80. We have previously ruled on several occasions that drilling or punching holes in various components is an operation incidental to assembly where the operation is not substantial. See, Headquarters Ruling Letter (HRL) 061429 dated March 28, 1980 (holes drilled and punched through plastic cabinet, wood decal, and oscillator shield to accommodate locks and coil were deemed to be incidental to assembly, as they were not substantial); and HRL 555394 dated August 15, 1989 (punching a hole into a vertical blind strip, which allows for the subsequent attachment of a plastic hook, is considered an incidental operation).

However, it is our opinion that the drilling operation in this case does not qualify as an assembly operation or operation incidental to assembly under subheading 9802.00.80, HTSUS. The drilling operation in question is distinguishable from Miles and the above-described cases, for in the latter situations the holes made by burning, drilling or punching were subsequently used in the assembly process. However, the holes drilled by Advanced Sleep are not used in the subsequent assembly of the water mattress inserts, but, rather, are created to allow air and water to flow or drain through the insert. The unique pattern design of the holes is an essential feature of the insert and distinguishes Advanced Sleep's water mattresses from those of its competitors. In our opinion, the drilling operation is a significant process whose primary purpose is the fabrication of the sheet component which later will be assembled into the water mattress insert. See HRL 554920 dated January 3, 1989 (punching a hole in one end of a fabric vane for receipt of a removable plastic hanger insert was not incidental to assembly as the attachment of the hanger did not constitute an assembly operation).

Moreover, an analysis of the Mast criteria supports the conclusion that the drilling operation is not an incidental operation. In applying the Mast criteria, the court in Surgikos, Inc. v. United States, 12 CIT , Slip Op. 88-35 (1988), found that fenestration and finishing folding operations performed after assembly operations were not incidental to the assembly process, as the operations comprised over one-fourth of the cost and one-third of the time involved to assemble the article, they were not necessary prerequisites to the assembly of the article, they were not related directly to the assembly process, and practical considerations did not "dictate" that the article be produced in the exact manner performed.

Although we recognize that the time and cost of the drilling operation in the instant case is minor compared to the time and cost of the total foreign operations, the drilling operation, nevertheless, is a significant step in the manufacture of the water mattress inserts for the reasons discussed above. Drilling the holes clearly is not a necessary prerequisite to the subsequent assembly of the insert, and the operation is not related directly to the assembly process. Additionally, we are not persuaded from the information presented that economic or other practical considerations mandate that the drilling operation be performed in Mexico immediately before the assembly. Weighing the above factors, we conclude that the drilling operation is not an incidental operation within the meaning of subheading 9802.00.80, HTSUS, but rather evidences that the sheet components are not exported in condition ready for assembly without further fabrication.


On the basis of the information presented, it is our opinion that the drilling operation is not an operation incidental to the assembly process, but rather is a further fabrication of the sheet components. Therefore, these components are not entitled to allowances in duty under subheading 9802.00.80, HTSUS.


John Durant, Director
Commercial Rulings Division