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NY R04756




September 7, 2006

MAR-2 RR:E:NC:1:109 R04756

CATEGORY: MARKING

Mr. Robert H. Fay
Branch Manager
Excell Battery Corporation (USA)
#250 10801 Hammerly Blvd
Houston, TX 77043

RE: The country of origin marking under the North American Free Trade Agreement (NAFTA), of battery packs from Canada; Article 509

Dear Mr. Fay:

This is in response to your letter dated August 28, 2006 requesting a ruling on the country of origin marking requirements for imported battery packs assembled in Canada under NAFTA.

Your letter states that you will be importing battery packs from Canada, which were assembled in Canada by your related company Excell Battery Company, Calgary, AB from various individual components. The battery pack is identified as PART # 2EXL4214N and described as a lithium thionyl chloride, fiberglass enclosed, battery pack containing 6 electrochem 3B900 DD cells in series. A listing of the various individual components used in the assembly process indicated that the country of origin of each component is China, USA, or Canada. A copy of a proposed marking label was furnished showing “Made in Canada” as the country of origin. A marked sample was not submitted with your letter for review.

In response to your inquiry as to the country of origin marking for the imported battery packs from Canada under NAFTA, the marking statute, section 304, Tariff Act of 1930, as amended (19 U.S.C. 1304), provides that, unless excepted, every article of foreign origin (or its container) imported into the U.S. shall be marked in a conspicuous place as legibly, indelibly and permanently as the nature of the article (or its 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 appropriate Customs Regulations. The Marking Rules used for determining whether a good is a good of a NAFTA country are contained in Part 102, Customs Regulations. The marking requirements of these goods are set forth in Part 134, Customs Regulations.

Section 134.1(b) of the 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 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 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 regulations, provides that a "good of a NAFTA country" may be marked with the name of the country of origin in English, French or Spanish.

You state that the battery packs are assembled in a NAFTA country “Canada” prior to being imported into the U.S. Since Canada is defined under 19 CFR 134.1(g), as a NAFTA country, we must first apply the NAFTA Marking Rules in order to determine whether the battery packs are a "good of a NAFTA country", and thus subject to the NAFTA marking requirements.

Part 102 of the 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 of the regulations, sets forth the required hierarchy for determining country of origin for marking purposes.

Applying the NAFTA Marking Rules set fort in Part 102 of the regulations to the facts of this case, we note that the applicable tariff provision of the battery packs will be 8506.50.0000, Harmonized Tariff Schedule of the United Stated Annotated (HTSUS), which provides for “Primary cells and primary batteries; parts thereof: Lithium.” We also note, that the individual components used in the assembly process of the battery packs fall in subheadings other than within 8506.50 through 8506.80, which is a requirement of Section 120.20(o). As such, we find that the imported battery packs are goods of Canada for marking purposes since they satisfy the requirements of Section 120.20(o) of the regulations. Therefore, your proposed marking of “Made in Canada” is acceptable.

This ruling is being issued under the provisions of Part 181 of the Customs Regulations (19 C.F.R. 181).

This ruling letter is binding only as to the party to whom it is issued and may be relied on only by that party.

A copy of the ruling or the control number indicated above should be provided with the entry documents filed at the time this merchandise is imported. If you have any questions regarding the ruling, contact National Import Specialist Linda M. Hackett at 646-733-3015.

Sincerely,

Robert B. Swierupski
Director,

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