CLA-2 CO:R:C:V 555601 LS

District Director of Customs
Lincoln Juarez Bridge, Bldg. #2
P.O. Box 3130
Laredo, Texas 78044-3130

RE: Internal Advice Request No. 7/90; applicability of subheading 9802.00.80, HTSUS, to an expandable 21-pocket letter file folder formed by cutting, scoring, taping, gluing, crimping, hole-punching, folding paper into bellows, and folding bellows into U-shape. Assembly; fabrication; incidental operations; Samsonite; Mast; 554962; 555394.

Dear Sir:

This is in response to your memorandum of January 17, 1990, forwarding a request for internal advice dated October 27, 1989, initiated by John Mayo McKeown, on behalf of Mead School and Office Products. The request relates to the applicability of subheading 9802.00.80, Harmonized Tariff Schedule of the United States (HTSUS), to an expandable 21-pocket letter file folder. Samples of the completed folder and the components were submitted for examination.

FACTS:

The following facts are based upon the submission of John McKeown, which includes photographs of the manufacturing steps performed in Mexico, and a telephone conversation between the manager of the assembly plant and a member of my staff.

Mead School and Office Products plans to export components of U.S. origin to a related company in Mexico which will perform certain operations resulting in an "expandable 21-pocket letter file," which measures 10 inches by 12 inches. The U.S. components used in each file consist of: a roll of paper which is 6 feet in diameter and 33 inches long; a roll of tape; 20 precut, preprinted, and prescored paper inserts; a precut chipboard; one reinforced precut and preprinted manila sheet which consists of white coated paper; a brown facing sheet (also known as a "front cover") and a back sheet (also known as a "back cover with flap") which have rounded edges and are precut,

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prescored, and preprinted; a tin eyelet ring; and a preassembled elastic cord. The operations performed in Mexico consist of the following steps:

1. The paper on the roll is cut to length.

2. The paper is scored on a separate machine. Scoring is a process whereby the paper is creased vertically along two lines, which facilitates the folding of the paper into a U-shape, as described in step 5 below. The scoring actually breaks the fibers of the paper.

3. The tape is applied to the ends of the paper and squeezed with a roller. The tape serves to reinforce the bellows described below.

4. A machine is used to fold the paper into bellows, which are similar to pleats.

5. The paper is folded into a "U" shape and crimped.

6. After the inserts are collated, they are folded on the sides along the scores. With glue applied to the folded portions, the inserts are attached to the U-shaped bellows to form the pockets of the expandable file folder.

7. The chipboard is glued to the front of the U-shaped bellows to create the first pocket.

8. The reinforced manila sheet is glued to the back of the U-shaped bellows to create the last pocket.

9. The brown front cover is glued to the chipboard located on the front of the U-shaped bellows.

10. The back cover with flap is glued to the back of the reinforced manila sheet.

11. A 1/4 inch diameter hole is punched by machine into the back cover with flap.

12. A tin metal eyelet ring is fit into the hole and secured by crimping.

13. An elastic cord is inserted through the eyelet and wrapped around the file folder.

14. Folders go through a shrinkable wrapping machine and are then packaged in shipping containers.

The broker for the importer focuses on the question of whether the scoring process, described in step 2, constitutes an

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operation incidental to the assembly process. In the request for internal advice you state your position that the processing of the paper from a continuous roll into the bellows portion of the expandable file folder by cutting, scoring, taping, folding, and crimping constitutes a fabrication of a component. Thus, you contend that the bellows component, which is formed from the paper and the tape before the attachment of the inserts, is not eligible for a duty allowance under subheading 9802.00.80, HTSUS. However, since the subsequent operations involving the remaining components are considered to be either assembly operations or operations incidental to assembly, you state that these other components are eligible for the duty allowance.

ISSUE:

Whether the expandable 21-pocket letter file folder will qualify for the partial duty exemption under subheading 9802.00.80, HTSUS, when imported into 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 of the Customs Regulations (19 CFR 10.24).

The assembly operations 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. See section 10.16(a), Customs Regulations (19 CFR 10.16(a)).

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. See 19 CFR 10.16(a). Examples of operations

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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).

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 considered the legislative history of the phrase "incidental to the assembly process," and found that Congress intended a balancing of all relevant factors to ascertain whether an operation of a "minor nature" was incidental to the assembly process. The court stated that relevant factors included:

(1) whether the relative cost of the operation and time required by the operation were 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.

Steps 6-10, outlined in the facts above, constitute acceptable assembly operations since they involve the joinder of two or more solid components by gluing. See 19 CFR 10.16(a). The fitting and crimping of the metal eyelet ring into the hole on the back cover with flap is another assembly operation. See 19 CFR 10.16(a); HRL 554962 dated May 15, 1989 (force fitting of "y"-shaped bracket to spiral-shaped metal tube, and crimping of bracket so that "y"-shaped frame and metal tube are permanently held together constitute an acceptable assembly operation.) The insertion of the elastic ring through the eyelet results in a secure joinder of the two components and constitutes the final assembly operation.

We find that, pursuant to 19 CFR 10.16(b), the operation of cutting the paper to length is incidental to the assembly process. However, the combined subsequent operations of scoring the paper, applying tape to its ends, folding this paper into bellows and then into a U-shape, and crimping the U-shaped bellows portion, constitute a fabrication of the component paper within the meaning of 19 CFR 10.16(c). These operations are not considered incidental to the assembly process, pursuant to 19 CFR 10.16(b)(5), since they constitute more than "adjustments in the

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shape or form of a component to the extent required by the assembly being performed abroad." See Samsonite Corp. v. United States, 12 CIT ___, 702 F. Supp. 908 (1988), aff'd, 8 CAFC ___, 889 F.2d 1074 (1989) (bending of steel strips into rectangular shapes constituted a further fabrication because it created the component to be assembled, the essence of which was its configuration, and it was necessary before assembly could take place). The primary purpose of folding the paper into bellows, folding the bellows into a U-shape, and then crimping the U- shaped paper is the further fabrication of the paper in a particular configuration. This bellows configuration is not only the essence of the U-shaped paper component, but also becomes the foundation of the expandable pocket file folder because it is essential to the completion of the other assembly steps. Without the bellows, the pockets could not be formed by attaching the inserts, and the remaining components could not be attached to the pockets.

The process of punching a hole into the back cover with flap to allow the fitting of the eyelet ring and the assembly of the elastic cord is considered an operation incidental to the assembly process. See HRL 555394 dated August 15, 1989 (punching a hole in the upper pocket of a fabric vane for receipt of a plastic hanger insert, which also has a hole punched in it, is an operation incidental to the assembly process). Applying the Mast criteria, we find the hole-punching operation to be minor in nature. First, the company which performs the operations in Mexico has informed us that the cost and time required by the punching operation constitutes less than 5 percent of that required for the overall assembly operation. Second, the hole- punching operation is a prerequisite to the subsequent assembly operations, outlined in steps 12 and 13. Finally, we have also been informed that economic and practical considerations dictate that the hole-punching be performed during the assembly.

The process of wrapping the expandable file folders, together with an insert, in plastic, and then packing the folders in shipping containers, will not disqualify the assembled articles from the partial duty exemption under subheading 9802.00.80, HTSUS. See 19 CFR 10.16(f).

HOLDING:

The combined operations of scoring the paper, applying tape to its ends, folding this paper into bellows and then into a U- shape, and crimping the U-shaped bellows portion constitute a fabrication of the component paper within the meaning of 19 CFR 10.16(c). Therefore, no allowance in duty is permitted under subheading 9802.00.80, HTSUS, for the cost or value of the rolls of paper and tape. However, allowances in duty may be made for the cost or value of the remaining U.S. origin components, when

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returned to the U.S., upon compliance with the documentation requirements of 19 CFR 10.24, because they have been advanced in value or improved in condition only by processes which constitute assembly operations or operations incidental to assembly.

Sincerely,

John Durant, Director
Commercial Rulings Division