CLA-2 R:C:S 559032 BLS
Jesse M. Gerson, Esq.
Barnes, Richardson & Colburn
200 East Randolph Drive
Chicago, Illinois 60601
RE: Country of origin marking of batteries packaged with a smoke alarm; Article 509
Dear Mr. Gerson:
This is in reference to your letters dated February 9, June 16, and September 22, 1995, on behalf of Seatt Corporation ("Seatt"), requesting a ruling that certain batteries packaged with imported smoke alarms are not subject to country of origin marking requirements.
FACTS:
The smoke alarms, which you state are of Mexican origin and are assembled with U.S.-origin parts, are packaged in a "2-Pack" blister pack with two single-use (not rechargeable) 9 volt batteries. In this regard, you advise that the smoke alarms are entitled to the partial duty exemption under subheading 9802.00.80, Harmonized Tariff Schedule of the United States (HTSUS). The batteries currently packaged with the smoke alarms are of U.S.-origin. However, in the future, Seatt intends to substitute batteries produced in China for the U.S. batteries. While these batteries will be marked with their country of origin, they will be enclosed in a separate portion of the package with screws and mounting brackets, and are not visible through the packaging, as evidenced in the sample blister pack submitted. (In some cases, the batteries may already be inserted into the applicable opening in the cavity at the rear of the smoke alarm.) The smoke alarms are marked "Assembled in Mexico," as is the retail package itself. The retail packaging also contains the statement "9 volt batteries included". You maintain that the retail packaging need not specify the country of origin of the batteries.
The cost of the batteries (material, labor and overhead) as a percentage of the total cost of the smoke alarm, including batteries, is 6.95%. However, you state that when general selling and administrative costs plus profit in the U.S. are added, the relative value of the batteries is approximately 5%.
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ISSUE:
What are the country of origin marking requirements for the imported article?
LAW AND ANALYSIS:
Section 304 of the Tariff Act of 1930, as amended (19 U.S.C. 1304), provides that, unless excepted, every article of foreign origin imported into the U.S. shall be marked in a conspicuous
place as legibly, indelibly, and permanently as the nature of the article (or container) will permit, in such a manner as to indicate to the ultimate purchaser in the U.S. the English name of the country of origin of the article. Part 134, Customs Regulations (19 CFR Part 134), implements the country of origin marking requirements and exceptions of 19 U.S.C. 1304.
The country of origin marking requirements for a "good of a NAFTA country" are also determined in accordance with Annex 311 of the North American Free Trade Agreement ("NAFTA"), as implemented by section 207 of the North American Free Trade Agreement Implementation Act (Pub. L. 103-182, 107 Stat. 2057) (December 8, 1993) and the interim amendments to the Customs Regulations published as T.D. 94-4 (59 Fed. Reg. 109, January 3, 1994) with corrections (59 Fed. Reg. 5082, February 3, 1994) and T.D. 94-1 (59 Fed. Reg. 69460, December 30, 1993), to coincide with the effective date of the NAFTA. The Marking Rules used for determining whether a good is a good of a NAFTA country are contained in T.D. 94-4 (adding a new Part 102, Customs Regulations). The marking requirements for these goods are set forth in T.D. 94-1 (interim amendments to various provisions of Part 134, Customs Regulations).
Section 134.(b) of the interim regulations, defines "country of origin" as:
The country of manufacture, production, or growth of
any article of foreign origin entering the U.S.
Further work or material added to an article in another
country must effect a substantial transformation in
order to render such other country the "country of
origin within this part; however, for a good of a NAFTA
country, the NAFTA Marking Rules will determine the
country of origin. (Emphasis added).
Section 134.1(j) of the interim regulations provides that the "NAFTA Marking Rules" are the rules promulgated for purposes of determining whether a good is a good of a NAFTA country. Section 134.1(g) of the interim regulations defines a "good of a NAFTA country" as an article for which the country of origin is Canada, Mexico or the United States as determined under the
NAFTA Marking Rules. Section 134.45(a)(2) of the interim regulations provides that a "good of
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a NAFTA country" may be marked with the name of the country of origin in English, French or Spanish.
In this case, batteries produced in China are imported into Mexico to be packaged with smoke alarms for exportation to the U.S. Thus, in order to determine the appropriate marking requirements for the imported merchandise, the smoke alarm and batteries, we must determine under the NAFTA Marking Rules the country of origin of the article which consists of the smoke alarms and the packaged batteries.
Part 102 of the interim regulations sets forth the "NAFTA Marking Rules" for purposes of determining whether a good is a good of a NAFTA country for marking purposes. Section 102.11(a) of the interim regulations provides that "[t]he country of origin of a good is the country in which:
(1) The good is wholly obtained or produced;
(2) The good is produced exclusively from domestic
materials; or
(3) Each foreign material incorporated in that good
undergoes an applicable change in tariff
classification set out in section 12.20 and
satisfies any other applicable requirements of
that section, and all other requirements of these
rules are satisfied."
"Foreign Material" is defined in section 102.1(e) of the interim regulations as "a material whose country of origin as determined under these rules is not the same country as the country in which the good is produced."
Neither the batteries nor the smoke alarms are "wholly obtained or produced," or "produced exclusively from domestic (Mexican) materials." Thus, for purposes of determining the origin of the imported good, section 102.11(a)(3) is the applicable rule that first must be applied. Under this rule, the country of origin of a good is the country in which each foreign material incorporated in that good undergoes an applicable change in tariff classification set out in section 102.20. Section 102.20 of the rules sets forth the specific tariff classification changes and/or other operations which are specifically required in order for country of origin to be determined on the basis of operations performed on the foreign materials contained in a good.
Based on the submitted information, we are assuming that the smoke alarms are a product of Mexico by virtue of section 102.11(a)(3). Since the batteries ("foreign materials" as provided under section 102.11(a)(3)) are merely packaged with the smoke alarms and are not further
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processed in Mexico, pursuant to section 102.17(c), they are not considered to have undergone the applicable change in tariff classification set out under section 102.20. Therefore, we would normally proceed to the next rule in the hierarchal scheme, section 102.11(b), to determine the country of origin of the article. However, section 102.13 provides, in pertinent part, that foreign materials that do not undergo the applicable change in tariff classification set out in section 102.20 or satisfy the other applicable requirements of that section when incorporated into a good shall be disregarded in determining the country of origin of the good if the value of those materials is no more than 7 percent of the value of the good. Therefore, if the value of the batteries is 7 percent or less than the appraised value of the imported good (smoke alarms and batteries), the country of origin of the imported article as determined under section 102.11(a)(3) will be Mexico.
Since the appraised value of the imported article cannot be determined until the time of entry, we cannot currently rule as to the applicability of section 102.13 to the batteries. Therefore, we must proceed in the alternative, that is, based on the assumption that section 102.13 will not be applicable.
Under this alternative scenario, we must proceed to the next rule in the hierarchy, section 102.11(b), to ascertain the country of origin marking requirements of the imported article. However, section 102.11(b) is not applicable if the good is specifically described in the Harmonized System as a set, or is classified as a set pursuant to General Rule of Interpretation 3. Thus, we must initially determine whether the article is classifiable as a set before proceeding under these rules.
Classification under the HTSUS is governed by the General Rules of Interpretation. GRI 1 provides, in part, that "classification shall be determined according to the terms of the headings and any relative section or chapter notes."
In accordance with GRI 1, the nickel-cadmium batteries are classifiable in subheading 8507.30.40, Harmonized Tariff Schedule of the United States (HTSUS), which provides for "electrical storage batteries...[n]ickel-cadmium storage batteries." The smoke alarms are classifiable in subheading 8531.10.00, HTSUS, which provides for "smoke detectors... battery powered."
GRI 2 is not applicable since the subject articles are neither "incomplete or unfinished" nor "mixtures or combinations...of a given material or substance." Accordingly, reference must be made to GRI 3.
Under GRI 3, when, by application of rule 2(b) or for any other reason, goods are, prima facie, classifiable under two or more headings, classification shall be effected, in pertinent part, as
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follows:
(a) The heading which provides the most specific
description shall be preferred to headings providing a
a more general description. However, when two or more
headings each refer... to part only of the items in a
set put up for retail sale, those headings are to be
regarded as equally specific in relation to those goods,
even if one of them gives a more complete or precise
description of the goods.
(b) ... [G]oods put up in sets for retail sale, which
cannot be classified by reference to 3(a), shall be
classified as if they consisted of the material or
component which gives them their essential character.
Accordingly, if the subject articles constitute a "set,"GRI 3 requires that the respective headings in which the components are described be regarded as equally specific, thereby requiring classification based on GRI 3(b).
In accordance with Explanatory Note (X) to GRI 3, the term "goods put up for retail sale" means goods which:
(a) consist of two different articles which are, prima
facie, classifiable in different headings;
(b) consist of products or articles put up together to meet
a particular need or carry out a specific activity; and
(c) are put up in a manner suitable for sale directly to
users without repacking.
Since the batteries are prima facie classifiable in heading 8507, and the smoke alarms are prima facie classifiable in heading 8531, the subject merchandise satisfies criterion (a). The articles also satisfy criterion (b), because they "meet a particular need or carry out a specific activity" by providing a user with the means, a smoke alarm, to detect a fire and alert users, and an energy source, batteries, which powers the smoke alarm. The articles also satisfy criterion (c), because they are imported "suitable for sale directly to users without repacking." Therefore, the smoke alarms and batteries constitute a "set" within the meaning of Explanatory Note (X) to GRI 3.
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Under the circumstances, section 102.11(b) is not applicable in determining the country of
origin of the imported article, and we must proceed to section 102.11(c), the next rule in the hierarchal order, which provides as follows:
(c) where the country of origin cannot be determined
under paragraph (a) or (b) and the good is specifically
described in the Harmonized System as a set or mixture,
or classified as a set, mixture or composite good pursuant
to General Rule of Interpretation 3, the country of origin
of the good is the country or countries of origin of all
materials that merit equal consideration for determining
the essential character of the good.
With regard to the interpretation and application of the words merit equal consideration, you argue that:
1) Merely because a material may comprise more than 7% of the value of a good (and therefore does not fall within the de minimus rule under 19 CFR 102.13), does not mean that it merits equal consideration as that term is used in 19 CFR 102.11(c);
2) Under Customs long-standing "common sense approach," the origin of the batteries should not be required to be disclosed; and
3) The batteries have lost their separate identity and have become an integral part of the smoke alarm set, particularly when inserted into the alarm cavity, and therefore, do not merit equal consideration, as provided under 19 CFR 102.11(c).
In T.D. 94-4, dated December 17, 1993 (59 Fed. Reg. 110, 109 on pg. 2, published on January 3, 1994; 28 Cust. Bull. No. 2, dated January 12, 1994), we stated the following with regard to section 102.11(c):
Paragraph (c) of section 102.11 reflects current practice
whereby multiple countries of origin may exist for goods
that are classified as "sets", and for goods classified as
"mixtures" or "composite" goods to which no single
component can be found to impart their essential character.
However, only the countries of origin of the countries
meriting equal consideration for determining the essential
character of the good would constitute the country or
countries of origin of the good. For example, the
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countries of origin of a cutlery and dinnerware packaged
set from Mexico, which includes 12 knives from Mexico, 12
forks from Korea, 12 spoons from Taiwan, and a plastic
case from Japan would be as follows: Mexico, Taiwan, and
Korea. The plastic case from Japan did not merit equal`0
consideration in determining the essential character of the set.
In T.D. 91-7 dated January 16, 1991 (Cust. Bull., Vol. 25), we stated the following:
It is noted, however, that in certain circumstances, the marking of
every item in a collection of goods may not be consistent with the
purpose of the statute, or may be impractical and/or undesirable.
This may be because one or more items in the collection are relatively
insignificant and would have no influence on the purchasing decision,
because the items in the collection are too numerous, making it impractical
to specify the country of origin of each item, or for various other reasons. Therefore, Customs will employ a "common sense" approach to determine
the marking requirements applicable to articles which comprise a
collection of goods.
An example of an item that would not require marking under T.D. 91-7 can be found in Headquarters Ruling Letter (HRL) 555365 dated September 5, 1990, where foreign-made screws were packaged with U.S.-origin junction boxes abroad and then returned to the U.S. Customs held that the screws were excepted from country of origin marking requirements because they lost their separate identity and became an integral part of the U.S.-origin boxes as a result of their inclusion in the kit.
T.D. 91-7 and HRL 555365 are instructive in determining whether certain materials "merit equal consideration" in ascertaining the essential character of an imported good. As applied to the instant case, we find that the batteries do not lose their identity as a result of their inclusion in the set, whether packaged separately or inserted into the chest cavity of the smoke alarm. In this regard, we note that as distinguished from the factual situations in HRL 555365 and the above-cited example in T.D. 94-4, the smoke alarms in the instant case cannot function without the power furnished by the batteries. Accordingly, in our opinion, both the batteries and the smoke alarms merit "equal consideration" in determining the essential character of the good. Our finding in this regard is not based on the value of the batteries, if in fact such value exceeds 7% of the appraised value of the imported article, but rather on the function of the batteries in an operating smoke alarm. Therefore, under this scenario (assuming 19 CFR 102.13 is inapplicable), both the batteries and the smoke alarms must be marked with their countries of origin.
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Pursuant to section 134.32(d), Customs Regulations (19 CFR 134.32(d)), the container (blister pack in this case) in which the smoke alarms and batteries are packaged may be marked instead of the articles contained therein if marking the container will reasonably indicate to the ultimate purchaser the country of origin of the articles. The blister packaging must be marked to indicate the origin of the smoke alarms and batteries, if the country of origin on the articles is obscured by the packaging.
In this case, the country of origin marking on the sample blister pack is located immediately below a U.S. address in the left hand corner where the smoke alarm is housed, and is of same size lettering, also in "white." We find that such marking is conspicuous, legible and permanent pursuant to the requirements of 19 U.S.C. 1304, and satisfies the special requirements of 19 CFR 134.46. However, in accordance with the above, the country of origin of the batteries must also be included on the packaging, with a marking such as "Batteries Made in China."
HOLDING:
1) Pursuant to 19 CFR 102.13, Chinese-origin batteries packaged with (or inserted into the cavity of) Mexican-origin smoke alarms will be disregarded for country of origin marking purposes if the value of the batteries is no more than 7 percent of the appraised value of the imported good. Under these circumstances, the country of origin of the imported article as determined under 19 CFR 102.11(a)(3) will be Mexico, the country of origin of the smoke alarms.
2) If it is determined upon entry that 19 CFR 102.13 is inapplicable, then under the hierarchal scheme, 19 CFR 102.11(c) will be the rule which will govern the country of origin marking requirements of the article. Under this provision, where the country of origin cannot be determined under 19 CFR 102.11(a) or (b) and the good is classified as a set pursuant to General Rule of Interpretation 3, the country of origin of the good is the country or countries of origin of all materials that merit equal consideration for determining the essential character of the good.
Since Customs finds that both the batteries and smoke alarms merit equal consideration for determining the essential character of the imported article, both materials, or their container (the blister pack), must be marked with their countries of origin. The blister packaging must be
marked with the countries of origin of the smoke alarms and batteries, if the country of origin on the articles is obscured by the packaging. See 19 CFR 134.32(d).
The country of origin marking on the sample blister pack submitted is conspicuous, legible and permanent pursuant to the requirements of 19 U.S.C 1304, and satisfies the special marking
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requirements of 19 CFR 134.46. However, assuming 19 CFR 102.13 is not applicable, the country of origin of the batteries must also be included on the packaging, in accordance with the requirements of 19 U.S.C. 1304, with a marking such as "Batteries Made in China."
A copy of this ruling letter should be attached to the entry documents filed at the time this merchandise is entered. If the documents have been filed without a copy, this ruling should be brought to the attention of the Customs officer handling the transaction.
Sincerely,
John Durant, Director
Tariff Classification Appeals Division
+
In HRL 555365, we held in part that three foreign-made screws packaged with a U.S.-origin junction box were excepted from country of origin marking requirements since the screws lost their separate identity and became an integral part of the U.S. product. Even though nothing was done to the screws other than packaging, Customs applied a "common sense" approach based on the insignificance of these materials, and the fact that the items would have no influence on the purchasing decision. (See also T.D. 91-7, pg. 18.)
However, in HRL 734737 dated December 17, 1992, we found that drawer slides imported into the U.S. and sold as part of unassembled furniture kits must be marked to indicate their
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country of origin, since they represented a significant part of the material cost of the completed furniture. In that case, the slides accounted for at least six percent and as much as twelve percent of the material cost of the finished furniture, as compared to 2.3% for the screws which were the subject of HRL 555365.
In the instant case, the batteries constitute 6.95% of the material cost of the smoke alarm kit, and are the power source without which the smoke alarms could not function. It is further noted that while the batteries are ordinarily used with the smoke alarms when accompanying them as part of a kit, they are not dedicated for use in smoke alarms, but may also be used for other applications, such as radios and toys. Therefore, we find that the batteries are not an integral part of the smoke alarms, do not lose their identity when packaged with these products, and do not undergo a substantial transformation as a result of such packaging. Accordingly, the batteries (or their containers) must be properly marked with their country of origin. Since in this case the blister packaging obscures the country of origin marking on the batteries, the packaging must be marked to specify the country of origin of the batteries with words such as "Batteries - Made in China."
In addition, if the smoke alarms are of Mexican-origin, as stated, ordinarily the packaging must also include appropriate country of origin marking such as "Smoke Alarms - Made in Mexico."
Under these circumstances, the words "Assembled in Mexico" would not be adequate to convey country of origin information to the ultimate purchaser. However, if the country of origin of the smoke alarms is determined in accordance with 19 CFR 102.14, concerning articles returned to the U.S. from Mexico or Canada after having been advanced in value or improved in condition, then the words "Smoke Alarms - Assembled in Mexico", or words of similar meaning, are acceptable. See 19 CFR 134.43(e). (See also 19 CFR 10.22, which provides that assembled articles entitled to an exemption from duty under subheading 9802.00.80, Harmonized Tariff Schedule of the United States (HTSUS), are considered products of the country of assembly for country of origin marking purposes. In such case, the words "Assembled in" for the particular article constitutes acceptable country of origin marking. See HRL 086128 dated January 19, 1990.
HOLDING:
Batteries packaged in a blister pack with smoke alarms for retail sale do not undergo a substantial transformation. Therefore, the batteries (or their container) must be marked with their country of origin. If country of origin marking on the batteries is obscured by the packaging, and cannot be seen by the ultimate purchaser at point of sale, the blister pack must be marked in a conspicuous place with appropriate country of origin information as legibly, indelibly, and permanently as the nature of the container will permit.
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Assuming that the smoke alarms are of Mexican-origin, as stated, the words on the blister pack "Assembled in Mexico" do not ordinarily constitute acceptable country of origin marking. Rather, the marking should state "Smoke Alarms - Made in Mexico", or words of similar meaning. However, the words "Assembled in" as applied to the smoke alarms will be acceptable if the country of origin of these items is determined in accordance with 19 CFR 102.14 or 19 CFR 10.22.
A copy of this ruling letter should be attached to the entry documents filed at the time this merchandise is entered. If the documents have been filed without a copy, this ruling should be brought to the attention of the Customs officer handling the transaction.
Sincerely,
John Durant, Director
Commercial Rulings Division