CLA-2 CO:R:C:M 956597 DWS

Ms. Gail T. Cumins
Sharretts, Paley, Carter & Blauvelt, P.C.
Sixty-seven Broad Street
New York, NY 10004

RE: Nickel-Cadmium Storage Batteries; Rolls of Nickel-Plated, Perforated Steel Sheet For Use in Batteries; Heading 7210; Impregnation and Alkali Treatments; Battery Parts; 8507.90.80; HQs 955346, 955947, 952938, 084610, and 081606; NAFTA; Article 509; General Notes 12(b)(i) and (ii)(A), and 12(t)/85.13(A); Change in Tariff Classification

Dear Ms. Cumins:

This is in response to your letter of February 16, 1994, on behalf of Sanyo Energy (USA) Corporation (SEC), to the Area Director of Customs, New York Seaport, concerning the applicability of the North American Free Trade Agreement (NAFTA) and classification of rolls of nickel-plated, perforated steel sheet and nickel-cadmium storage batteries under the Harmonized Tariff Schedule of the United States (HTSUS). Your letter was referred to this office for a response.

FACTS:

The merchandise consists of rolls of nickel-plated, perforated steel sheet which has been surface treated with chemicals. These rolls range from 400 to 500 meters (1300 to 1600 feet) in length and from 70 to 80 centimeters (2.3 to 2.6 feet) in width. The fully processed rolls will be imported into Mexico from a country other than the U.S., Canada, or Mexico, for use in the production of positive and negative plates for nickel-cadmium storage batteries. After importation into Mexico, the rolls will be cut into strips approximately 1 1/4 inches in width. The narrow strips will then be cut into lengths of approximately 6 1/2 inches. These metal pieces will then be placed into the battery can along with the other components necessary to complete the battery. The completed nickel-cadmium storage batteries will be imported into the U.S.

The subheadings under consideration are as follows:

8507.90.80: [e]lectric storage batteries, including separators therefor, whether or not rectangular (including square); parts thereof: [p]arts: [o]ther.

The general, column one rate of duty for goods classifiable under this provision is 5.1 percent ad valorem.

8507.30.80: [n]ickel-cadmium storage batteries: [o]ther.

The general, column one rate of duty for goods classifiable under this provision is 5.1 percent ad valorem.

7326.90.90: [o]ther articles of iron or steel: [o]ther: [o]ther: [o]ther: [o]ther.

The general, column one rate of duty for goods classifiable under this provision is 5.7 percent ad valorem.

ISSUES:

Whether the rolls of nickel-plated, perforated steel sheet are classifiable under subheading 8507.90.80, HTSUS, as parts of electric storage batteries, or under subheading 7326.90.90, HTSUS, as other articles of steel.

Whether the nickel-cadmium storage batteries are eligible for preferential treatment under the NAFTA.

LAW AND ANALYSIS:

CLASSIFICATION

Classification of merchandise under the HTSUS is in accordance with the General Rules of Interpretation (GRI's), taken in order. GRI 1 provides that classification is determined according to the terms of the headings and any relative section or chapter notes.

As noted, nickel-cadmium storage batteries are specifically provided for under subheading 8507.30.80, HTSUS. Accordingly, upon importation into the U.S. from Mexico, the completed batteries will be classifiable under this provision.

In HQ 955346, dated February 9, 1994, which concerned the classification of coils of stainless steel curved wire designed for the manufacture of piston rings for automobile engines, we stated that:

[u]nder a longstanding Customs principle, goods which are material when entered are not classifiable as a particular article unfinished. See Sandvik Steel, Inc. v. U.S., 321 F.Supp. 1031, 66 Cust. Ct. 12, C.D. 4161 (1971) (shoe die knife steel in coils and cutting rules in lengths, without demarcations for cutting or bending, held to be material rather than unfinished knives or cutting blades); The Harding Co. v. U.S., 23 Cust. Ct. 250 (1936) (rolls of brake lining held to be material because the identity of the brake lining was not fixed with certainty); Naftone, Inc. v. U.S., 67 Cust. Ct. 340, C.D. 4294 (1971) (rolls of plastic film without demarcations for cutting despite having only one use held to be insulating material).

See also HQ 955947, dated July 18, 1994, HQ 952938, dated August 4, 1993, and HQ 084610, dated May 17, 1990.

Even though the merchandise has been processed prior to importation into Mexico, because the rolls of nickel-plated, perforated steel sheet are imported in material lengths without demarcations for cutting, it is our position that they cannot be classifiable under subheading 8507.90.80, HTSUS, as parts of electric storage batteries.

In HQ 081606, dated August 10, 1988, we held that similar rolls of nickel-plated, perforated steel sheet strip, to be further processed, for use as positive and negative grids in rechargeable nickel-cadmium storage batteries, were classifiable under subheading 7326.90.90, HTSUS, as other articles of steel. It is our position that the subject merchandise is also classifiable under subheading 7326.90.90, HTSUS.

Consideration was given to classification of the merchandise under heading 7210, HTSUS, which provides for: "[f]lat-rolled products of iron or nonalloy steel, of a width of 600 mm or more, clad, plated or coated." However, as noted, it has been surface finish treated. Harmonized Commodity Description and Coding System Explanatory Note 72.10 and General Explanatory Note (IV)(C)(2) provide that heading 7210, HTSUS, includes products which have been clad, plated, or coated as specifically described. It does not include surface treatment with chemical compounds as a coating process. Therefore, it is our position that heading 7210, HTSUS, does not describe the subject merchandise.

NAFTA APPLICABILITY

To be eligible for tariff preferences under the NAFTA, goods must be "originating goods" within the rules of origin in general note 12(b), HTSUS. General notes 12(b)(i) and (ii)(A), HTSUS, state:

[f]or the purposes of this note, goods imported into the customs territory of the United States are eligible for the tariff treatment and quantitative limitations set forth in the tariff schedule as "goods originating in the territory of a NAFTA party" only if --

(i) they are goods wholly obtained or produced entirely in the territory of Canada, Mexico and/or the United States; or

(ii) they have been transformed in the territory of Canada, Mexico and/or the United States so that --

(A) except as provided in subdivision (f) of this note, each of the non-originating materials used in the production of such goods undergoes a change in tariff classification described in subdivisions (r), (s) and (t) of this note or the rules set forth therein . . .

The batteries contain the metal pieces which are cut from the rolls of nickel-plated, perforated steel sheet imported into Mexico from a non-NAFTA country. Therefore, because the batteries contain goods from a country other than Mexico, Canada, and/or the U.S., general note 12(b)(i), HTSUS, does not apply. Consequently, we must resort to general note 12(b)(ii)(A), HTSUS.

Because the completed nickel-cadmium storage batteries are specifically provided for under subheading 8507.30.80, HTSUS, a transformation is evident when a change in tariff classification occurs which is authorized by general note 12(t)/85.13(A), HTSUS, which states:

[a] change to subheadings 8507.10 through 8507.80 from any other heading.

Therefore, any non-originating materials in the subject nickel-cadmium storage batteries must come from a heading other than subheadings 8507.10, HTSUS, through 8507.80, HTSUS. As previously stated, the non-originating rolls of nickel-plated, perforated steel sheet are classifiable under subheading 7326.90.90, HTSUS, as other articles of steel.

Consequently, a change in tariff classification does occur, and the nickel-cadmium storage batteries, containing metal pieces cut from rolls of nickel-plated, perforated steel sheet from a non- NAFTA country, are eligible for preferential treatment under the NAFTA.

HOLDING:

The rolls of nickel-plated, perforated steel sheet are classifiable under subheading 7326.90.90, HTSUS, as other articles of steel.

The nickel-cadmium storage batteries are classifiable under subheading 8507.30.80, HTSUS, and are eligible for preferential treatment under the NAFTA.

Sincerely,

John Durant, Director