CLA-2 CO:R:C:S 555877 WAW

District Director of Customs
880 Front Street
San Diego, CA 92188

RE: IA 9/91 regarding GSP eligibility of battery packs imported from Mexico; double substantial transformation

Dear Sir:

This is in response to your memorandum of January 31, 1991, forwarding the internal advice request filed by Russell H. Martinson on behalf of Saft America, Inc. The request concerns the eligibility of certain nickel-cadmium cell and battery products for duty-free treatment under the Generalized System of Preferences (GSP) (19 U.S.C. 2461-2466). No samples of the articles were submitted for our review. However, the importer has provided photographs illustrating the steps involved in manufacturing and assembling component parts into nickel-cadmium cells and battery products.

FACTS:

I. Assembly of the "Nickel-Cadmium Cells"

All of the components used to produce the cells in Mexico are of U.S. origin. Although approximately 28 types of cells are produced at the Mexican facility, the production process for each is generally described as follows:

(1) treated separator is slit to a specified width to create a slit separator;

(2) slit separator is cut to a specified length to create an auxilliary separator;

(3) positive electrode, a second length of slit separator, the auxilliary separator, and the negative electrode are manually stacked and aligned per specification on the "coiling" machine. The operator uses the machine to cut the separatory to proper length and wind together the components, creating a coil. After the coil is complete, the operator places the retaining ring over the coil in preparation for calibration;

(4) coil is inserted into a calibration press to correctly align the negative and positive electrodes;

(5) negative collector is resistance welded to the negative electrode of the coil;

(6) positive collector is resistance welded to the positive electrode of the coil;

(7) asphalt thinner is combined with the asphalt to create liquid asphalt;

(8) liquid asphalt is applied to the inner rim of the can to create an asphalted can;

(9) coil is inserted into the asphalted can, creating a can/coil;

(10) can/coil is electrically tested for short circuit;

(11) negative collector is resistance welded to the base of the can;

(12) an electrolyte is dispensed per specification into the can/coil;

(13) button pellet and base are assembled using resistance welding to produce a cover;

(14) cover is assembled to the gasket to produce a cover/gasket;

(15) cover/gasket is resistance welded to the positive collector of the can/coil;

(16) cover/gasket is positioned over the can/coil;

(17) ring is placed over the cover/gasket and is crimped by a sizing press to the can/coil, creating the finished product; a "cell;"

(18) cell is tested for short circuit;

(19) cell is inspected for proper dimensions and aspect;

(20) cell is coded with the date and a proper identification code;

(21) cell is externally cleaned to remove electrolyte and press-oil residue;

(22) cell is electrically charged, then discharged and quality tested for charge capacity and voltage. This test takes approximately 20 hours for completion;

The finished cells are either sold to assembly houses in the U.S. for use in making batteries or are assembled with other components at the importer's Mexican facility to produce finished batteries. The importer requests that we determine whether the cost or value of U.S.-origin materials which are used in the production of the individual cells which are then sold to U.S. companies may be included in the 35% value-content requirement for purposes of the GSP.

II. Assembly of "Batteries"

The importer also produces batteries in its Mexican facility. The principal component of a finished battery is the Mexican assembled cell. Some batteries require only one cell in their assembly, other batteries require several cells. The importer produces hundreds of types of batteries, each specially designed for a particular customer's application. The "cell" constitutes the principal but not the sole component of any battery. Many batteries require components such as resistors, thermoswitchers, diodes, and terminals to satisfy specific electrical performance requirements. All batteries require some form of insulation to eliminate the risk of an electrical short circuit, with the extent and type of insulation depending on the application. Some batteries, particularly those for consumer markets, require extensive labeling and packaging. The shape of the battery may vary depending upon the customer's application. The batteries may be incorporated into, among other things, emergency lighting fixtures, remote-control toys, lap-top computers, and portable telephones. Two examples of typical battery products produced by the importer are described below.

The importer produces a "mine safety battery" which is used in a detection device worn by miners to warn of exposure to dangerous underground gases. The mine safety battery is assembled as follows:

(1) a nickel strip is cut to .5 inches in length, creating a tab .500 inches by .250 inches. This procedure is repeated to produce 10 tabs;

(2) heat shrink tubing is cut to 1.125 inches in length, creating a tube 1.125 inches. This procedure is repeated to produce 2 tubes;

(3) tubes are placed over each lead of the circuit breaker. Tubes are formed around each lead by heating them with a shrink gun;

(4) the loose tabs are soldered to each lead of the circuit breaker, thus creating a circuit breaker assembly. The soldered tabs are cleaned free of solder flux;

(5) nickel strip is cut to 1.875 inches in length, creating a tab 1.875 inches by .250 inches;

(6) nickel strip is cut to .625 inches in length, creating a tab .625 inches by .250 inches;

(7) heat shrink tubing is cut to 1.250 inches in length, creating a tube 1.250 inches. This procedure is repeated to produce two tubes;

(8) place tubes over each lead of a resistor. Form tubes around each lead by heating them with a shrink gun;

(9) solder tab (from step 5) to one lead of resistor. Repeat this procedure, solering the tab (from step 6) to the other lead, thus creating a resistor-tab. Clean the soldered tabs free of solder flux;

(10) red wire is cut to 4 inches and 6 inches in length, and .250 inches of insulation is stripped off of each end;

(11) two pieces of crepe tape are cut to .5 inches in length and placed over one end of each wire from step 10 above, covering one of the stripped ends from each wire;

(12) the untaped end of both wires is soldered to a single tab, aligning wires side by side against the tab. This becomes the lead-tab. The solder joint is cleaned free of flux;

(13) black wire is cut to 7 inches in length, and .250 inches of insulation is stripped off of each end;

(14) crepe tape is cut to .5 inches in length and placed over one end of the wire from step 13, covering one of the stripped ends;

(15) the untaped end of wire (step 15) is soldered to a tab (from step 1). This become the lead-tab. The solder joint is cleaned free of flux;

(16) black wire is cut to 1 inch in length, and .250 inches of insulation is stripped off of each end. This procedure is repeated to make three 1 inch wires;

(17) solder each end of each wire (from step 17) to tabs (from step 1), creating three lead-tabs. The solder joints are cleaned free of flux;

(18) check the open circuit voltage of the cell using a test meter. Repeat the procedure for 6 cells;

(19) the top insulator is applied to the top of each cell (from step 18);

(20) white tubing is cut to 2.65 inches in length. Cut tubing is placed over the cell. The tubing is aligned and heat shrunk around the cell. This procedure is repeated for 6 cells;

(21) the cells are positioned into a jig and aligned to form a correct battery pattern. The cells are secured into position using adhesive and glass tape. The battery is removed from the jig;

(22) the circuit breakers are positioned in proper location against the battery. The leads are welded to the battery;

(23) the resistor-tab is positioned in the proper location against the battery. The leads are welded to the battery;

(24) the lead-tab (subassembly C) is positioned in the proper location against the battery. The lead is welded to the battery;

(25) the lead-tab (subassembly D) is positioned in the proper location against the battery. The lead is welded to the battery;

(26) the lead-tab (subassembly E) is positioned in the proper location against the battery. The leads are welded to the battery;

(27) using test meter, test open circuit voltage of battery;

(28) part number and date code is printed on the label;

(29) label is applied to the battery;

(30) the battery is visually inspected and cleaned;

(31) electrical capacity test is performed on the battery;

(32) battery is packed for shipping.

A second type of battery produced in Mexico, referred to as the "Chloride battery," is assembled as follows:

(1) nickel strip is cut to a .625 inches in length, creating a tab .625 inches by .250 inches. This procedure is repeated to produce 6 tabs;

(2) black wire is cut to 4.5 inches in length and .5 inches is stripped off each end. This procedure is repeated to produce 2 wires;

(3) red wire is cut to 4.5 inches in length and .5 inches is stripped off each end. This procedure is repeated to produce 2 wires;

(4) two pieces of crepe tape are cut to .5 inches in length and placed over one end of one of the black wires (from step 2), and over one end of one of the red wires (from step 3), covering one of the stripped ends of each wire;

(5) a tab (from step 1) is soldered to each untaped end of all wires from steps 2-4. This creates 4 lead-tab sub-assemblies. (Subassembly A,B,C,D) The solder joints are cleaned free of flux;

(6) check the open circuit voltage of the cell with a test meter. This procedure is repeated for all 5 cells;

(7) position one stacking insulator and one stacking cup over the positive end of a cell (from step 5). Weld the stacking cup to the cell. Repeat this procedure for 2 cells;

(8) position the negative end of a second cell (from step 5) against a welded stacking cup (from step 6), placing the second cell inside the walls of the stacking cup. Weld the second cell to the stacking cup, creating a 2-cell stack. Repeat this procedure to create a second 2-cell stack;

(9) load the 2-cell stacks (from step 7) into kraft tubes. Load the remaining cell (from step 5) into the kraft tube;

(10) kraft tubing on one of the 2-cell stacks (from step 8) is marked with customer name, customer part number, and date code;

(11) lead-tab is positioned (Subassembly A) in proper location against battery. Leads are welded to the battery;

(12) lead-tab is positioned (Subassembly B) in proper location against battery. Leads are welded to the battery;

(13) lead-tab is positioned (Subassembly C) in proper location against battery. Leads are welded to the battery;

(14) lead-tab is positioned (Subassembly D) in proper location against battery. Leads are welded to the battery;

(15) open circuit voltage of the battery is tested using a test meter;

(16) battery is visually inspected and cleaned;

(17) electrical capacity test is performed on the battery;

(18) battery is packed for shipment to the U.S.

With respect to the batteries produced in Mexico, the importer asks whether the cost or value of the U.S.-origin materials that are used to produce the cells, which are subsequently incorporated into the batteries, may be counted toward the 35% value-content requirement.

ISSUE:

(1) Whether the cost or value of the U.S.-made materials which are used in Mexico to produce nickel-cadmium cells may be counted toward the GSP 35% requirement when the finished cells are imported into the U.S.

(2) Whether cells which are produced in Mexico from U.S. components are substantially transformed constituent materials of the battery packs into which they are subsequently incorporated in Mexico, thereby enabling the cost or value of the U.S. materials to be counted toward the 35% value-content requirement.

LAW AND ANALYSIS:

Under the GSP, eligible articles the growth, product or manufacture of a designated beneficiary developing country (BDC) which are imported directly into the U.S. qualify for duty-free treatment if the sum of (1) the cost or value of the materials produced in the BDC, plus (2) the direct costs involved in processing the eligible article in the BDC, is at least 35% of the article's appraised value at the time of its entry into the U.S. See section 10.176(a), Customs Regulations (19 CFR 10.176(a)).

Section 10.176(a) of the Customs Regulations provides that the words "produced in the beneficiary developing country" refer to the constituent materials of which the eligible article is composed which are either (1) wholly the growth, product, or manufacture of the BDC, or (2) substantially transformed in the BDC into a new and different article of commerce. In the case of materials imported into a BDC (such as the component parts in the instant case), the cost or value of these materials may be included in the 35% value-content computation only if the imported materials undergo a double substantial transformation in the BDC. In the instant case to satisfy the double substantial transformation requirement, the non-Mexican components comprising the cells may be counted toward the 35% value-content requirement only if they are first substantially transformed into a new and different intermediate article of commerce, which is itself substantially transformed in Mexico in the production of the final article, the battery pack. See section 10.177(a), Customs Regulations (19 CFR 10.177(a)).

The test for determining whether a substantial transformation has occurred is whether an article emerges from a manufacturing process[es] with a name, character or use which differs from those of the original material subjected to the process. See Texas Instruments Inc. v. United States, 69 CCPA 152, 681 F.2d 778 (1982).

The first question that we are asked to address is whether the non-BDC sourced components and materials from the U.S. which are used to assemble the finished cells qualify as substantially transformed constituent materials which may be included in the 35% value-content computation for purposes of the GSP.

We have previously held in a number of cases that the process of incorporating a large number of discrete component parts onto a printed circuit board (PCB) subassembly is sufficiently complex to result in a substantial transformation of the parts making up the PCB subassembly. We found in these cases that the separate components acquired new attributes, and the PCB subassembly differs in character and use from the component parts of which it is composed. Furthermore, we determined that the production of the subassembly involved substantial operations (cutting, mounting, soldering, quality control testing), which increased the components' value and endowed them with new qualities which transformed them into an article with a new and distinct commercial identity. See C.S.D. 89-118, 23 Cust. Bull. ___ (1989); C.S.D. 88-37, 22 Cust.Bull. ___ (1988); C.S.D. 85- 25, 19 Cust.Bull. 544 (1985); Headquarters Ruling Letter (HRL) 555206 dated March 10, 1989.

In the present case, we find that the production of the "cells" constitutes a substantial transformation. The separate components imported into Mexico acquire new attributes, and the "cell" differs in character and use from the component parts of which it is composed. The production of the "cell" involves substantial operations such as cutting, soldering and quality control testing which increases the components' value and endows them with new qualities which transform them into an article with a new distinct commercial identity. We further find that the battery cells are distinct articles of commerce. The court has defined an article of commerce for purposes of the GSP to be "one that is ready to be put into the stream of commerce." See Azteca Milling Co. v. United States, 703 F. Supp. 949 (1988), aff'd, 890 F.2d 1150 (1989) (an article of commerce for GSP purposes is one that is "readily susceptible of trade, and . . . [one] that persons might well wish to buy and acquire for their own purposes of consumption or production."). The sale of the battery cells to assembly houses in the U.S. for use in making batteries is sufficient evidence in this case that the cells are distinct articles of commerce, that they are readily susceptible of trade, and are bought for purposes of consumption and production.

In regard to the battery cells which are imported into the U.S. for further processing into batteries, as only one substantial transformation takes place in Mexico, the cost or value of the U.S. materials used to produce the cells may not be included in the 35% value-content calculation.

The final issue is whether the further assembly of the cells with other components in Mexico to create the final product -- batteries -- results in a second substantial transformation.

According to 19 CFR 10.195(a) implementing the Caribbean Basin Economic Recovery Act (CBERA), no article shall be considered to have been produced in a CBERA beneficiary country by virtue of having merely undergone simple, as opposed to complex or meaningful, combining or packaging operations. However, 19 CFR 10.195(a)(2)(ii)(D) provides that a simple combining operation shall not be taken to include:

A simple combining or packaging operation or mere dilution coupled with any other type of processing such as testing or fabrication (e.g., a simple assembly of a small number of components, one of which was fabricated in the beneficiary country where the assembly took place.) This regulation is instructive here inasmuch as the CBERA and GSP have similar statutory aims, and the country of origin criteria of the two statutes are nearly identical.

We believe that the operations described above to produce the mine safety and chloride batteries constitute more than a simple combining operation as set forth in 19 CFR 10.195(a). We also find that the further complex assembly of the cells with other components to create these specific batteries results in a second substantial transformation. However, these two cases are distinguishable from those instances where, for example, batteries are created merely by applying insulation to a cell to prevent short circuits; this latter assembly process would constitute a simple combining operation. Regarding the production of the mine safety and chloride batteries, not only does the processing involve a significant number of component parts and assembly operations, but certain of the battery parts are fabricated in Mexico and the battery itself undergoes testing in Mexico. Additionally, the assembly processes require a relatively significant period of time as well as skill, attention to detail, and quality control. The production of these battery packs clearly results in a significant economic benefit to the BDC from the standpoint of both the value added to each component part and the overall employment generated by the operations. See C.S.D. 85-25 dated September 25, 1984 (HRL 071827).

Finally, the fabrication and assembly process involved in producing the mine safety and chloride batteries is not the type of "pass-through" operation which Congress intended to prohibit from receiving GSP benefits. "The provision would not preclude meaningful assembly operations utilizing foreign components, provided the assembly is of significance to the local economy, meets the 35% local content rule, and results in a new and different article." H.R. Rep. No. 98-266, 98th Cong., 1st Sess. 13 (1983).

HOLDING:

On the basis of the information submitted, it is our position that the production of the cells results in a substantial transformation of the materials comprising these articles. Moreover, the complex assembly of the cells with other materials in Mexico to create finished batteries results in a second substantial transformation of the materials comprising the cells. Therefore, the cost or value of the constituent materials (cells) used in the complex assembly of battery packs such as the mine safety and chloride batteries, may be included for purposes of satisfying the GSP 35% value-content requirement.

However, the assembly of the U.S.-origin components and materials used to produce the individual cells which are subsequently sold to U.S. companies does not result in the requisite double substantial transformation. Therefore, with respect to those cells which are imported into the U.S., the cost or value of the U.S. materials may not be included in the 35% value-content requirement for purposes of the GSP.

Sincerely,

John Durant, Director
Commercial Rulings Division