CLA-2  CO:R:C:V  555523 LS
Mr. Gordon W. Larson
          Account Manager
          Rudolph Miles & Sons, Inc.
          4950 Gateway East
          P.O. Box 144
          El Paso, Texas 79942
          RE:  Applicability of subheading 9801.00.10 and 9802.00.80,
               HTSUS, to "rechargeable battery set" to be imported from
               Mexico.  Set; packaging; Superscope; assembly; country of
               origin marking requirements; 083672; 555592; 554935; 555239
          Dear Mr. Larson:
                This is in response to your letter of January 16, 1989,
          requesting a ruling on the applicability of subheading
          9801.00.10, Harmonized Tariff Schedule of the United States
          (HTSUS), to a battery charger of U.S. origin, and the
          applicability of subheading 9802.00.80, HTSUS, to rechargeable
          nickel cadmium batteries assembled in Mexico, when these
          articles, along with an adapter of foreign origin, are packaged
          together in Mexico for retail sale as a set.  We regret the delay
          in responding to this portion of your request.
                In Headquarters Ruling Letter (HRL) 083672 dated May 16,
          1989, we responded to your request for a classification ruling on
          this same merchandise.  We found that, in accordance with General
          Rule of Interpretation 3(b), HTSUS, the above described articles
          are classifiable as a set under subheading 8504.40.00, HTSUS,
          dutiable at the rate of 3 percent ad valorem, provided the set
          was not subject to special duty treatment.  This classification
          was based upon a finding that the battery charger imparts the
          essential character to the set.
          FACTS:
                The following facts are based upon your letter of January
          16, 1989, and a recent telephone conversation with a member of my
          staff.  The battery charger is of U.S. origin.  The rechargeable
          nickel cadmium batteries are assembled in Mexico partly of U.S.
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          origin components.  Although the adapter is said to be assembled
          in Haiti, no claim is being made for a partial duty exemption
          under subheading 9802.00.80, HTSUS, for this article.  For
          purposes of this ruling, we assume that none of the components
          comprising the adapter are of U.S. origin.  These three items are
          packed together in Mexico using blister packaging, which consists
          of a cardboard backing and a plastic front.  The charger is
          capable, with the use of the adapter, of charging all common
          sizes of consumer rechargeable nickel cadmium batteries.
                Assuming that the battery charger of U.S. origin imparts
          the essential character to the set and is entitled to the duty
          exemption under subheading 9801.00.10, HTSUS, you inquire whether
          the entire set is considered to be of U.S. origin and entitled to
          duty-free treatment under subheading 9801.00.10, HTSUS.  You also
          inquire as to the country of origin of the set both for marking
          purposes and to determine the duty rate applicable to the entire
          set.
          ISSUES:
                (1)  Whether the set, consisting of the battery charger,
          adapter, and batteries, will qualify for the duty exemptions
          available under subheadings 9801.00.10 and 9801.00.80, HTSUS,
          when returned to the U.S.
                (2)  What country of origin marking requirements are
          applicable to the set?
          LAW AND ANALYSIS:
          I.  Applicability of subheadings 9802.00.80 and 9801.00.10, HTSUS
                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
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          the documentary requirements of section 10.24, Customs
          Regulations (19 CFR 10.24).
                Upon compliance with the above statutory and regulatory
          requirements, the assembled batteries, which are packaged with
          the battery charger and adapter, may be entered under subheading
          9802.00.80, HTSUS, with allowances in duty for the cost or value
          of the U.S. components comprising the batteries.
                Subheading 9801.00.10, HTSUS, provides for the duty-free
          entry of products of the U.S. that are returned after having been
          exported, without having been advanced in value or improved in
          condition by any process of manufacture or other means while
          abroad, provided there has been compliance with the documentary
          requirements of section 10.1, Customs Regulations (19 CFR 10.1).
                In the recent decision of Superscope, Inc. v. United
          States, 13 CIT ____, 727 F. Supp. 629 (1989), the court held that
          certain glass panels of U.S. origin that were exported, repacked
          abroad with certain foreign components, and returned to the U.S.
          as part of unassembled audio cabinets, were entitled to duty-free
          entry under item 800.00, Tariff Schedules of the United States
          (TSUS), since the U.S. panel portion of the imported article was
          "not 'advanced in value or improved in condition . . . while
          abroad,' but [was] merely repacked."  Id. at 631.  Although the
          Superscope case concerned the TSUS, not the HTSUS, the decision
          is believed to be equally applicable to similar situations
          arising under the HTSUS, since item 800.00, TSUS, and relevant
          Schedule 8, TSUS, headnotes were carried over virtually unchanged
          into the HTSUS.
                One of those notes in the HTSUS, U.S. Note 1, Chapter
          98, HTSUS (the chapter encompassing special classification
          provisions, including subheading 9801.00.10, HTSUS), provides as
          follows:
                The provisions of this chapter are not subject to the rule
                of relative specificity in general rule of interpretation
                3(a).  Any article which is described in any provision in
                this chapter is classifiable in said provision if the
                conditions and requirements thereof and any applicable
                regulations are met.  (Emphasis added).
          The "conditions and requirements" of subheading 9801.00.10,
          HTSUS, are (1) that the article be a product of the U.S.; and (2)
          that it not be advanced in value or improved in condition by any
          means while abroad.  Granting duty-free treatment under this
          provision to items in a set (e.g., foreign-made items) which do
          not meet these "conditions and requirements" would clearly
          contravene the plain meaning and intent of the referenced U.S.
          Note.  We believe there is no question that the application of
          GRI 3(b) was never intended to result in granting American goods
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          returned status to foreign-made materials or components in a set.
          See HRL 555592 dated October 18, 1990, modifying HRL 554935 dated
          April 10, 1989.
                With respect to the rechargeable battery set, the mere
          packaging of the battery charger with the other items neither
          advances it in value nor improves it in condition.  Therefore,
          the battery charger, which is a U.S. product, will be eligible
          for the duty exemption under subheading 9801.00.10, HTSUS.  This
          assumes that the documentation requirements of 19 CFR 10.1 are
          met and that the district director of Customs at the port of
          entry is satisfied that the battery charger is, in fact, of U.S.
          origin.
                Based upon the foregoing analysis, and our prior finding
          that the essential character of the set is imparted by the U.S.
          origin battery charger, we conclude that the entire rechargeable
          battery set is dutiable on its full value, under subheading
          8504.40.00, HTSUS, at the "Column 1 General" duty rate of 3
          percent ad valorem, less the cost or value of the U.S. components
          comprising the assembled batteries.  Additionally, a
          classification allowance may be made under subheading 9801.00.10,
          HTSUS, for the cost or value of the U.S. battery charger.
          III.  Applicability of country of origin marking requirements
                Neither the HTSUS nor the Customs Regulations contains any
          provisions regarding the marking of sets, mixtures or composite
          goods.  The classification of a set or mixed or composite goods
          in one HTSUS subheading by reference to GRI 3(b) is not
          determinative of the country of origin marking requirements of
          the materials or components which comprise the set.  Instead, the
          general country of origin marking requirements apply with respect
          to the items comprising a set.
                Section 304 of the Tariff Act of 1930, as amended (19
          U.S.C. 1304), provides, subject to specified exceptions, that all
          articles of foreign origin (or their containers) imported into
          the U.S. are required to be legibly, conspicuously, and
          permanently marked to indicate the country of origin to an
          ultimate purchaser in the U.S.  For purposes of this statute,
          "country of origin" means 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
          generally must effect a substantial transformation in order to
          render such other country the "country of origin."  See section
          134.1(b), Customs Regulations (19 CFR 134.1).
                In this case, we find that none of the components of the
          rechargeable battery set is substantially transformed in Mexico
          as a result of its inclusion in the same retail package.
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          Essentially, the consumer is purchasing three separate items.
          Accordingly, each component in the set must be marked to indicate
          its own country of origin, subject to the usual exceptions.
          Batteries
                There are several exceptions to the general rule that the
          country of origin of an article is the country where the last
          substantial transformation occurs.  One such exception, set forth
          in section 10.22, Customs Regulations (19 CFR 10.22), specifies
          the following country of origin marking requirements for articles
          entitled to a duty exemption under subheading 9802.00.80, HTSUS:
                Assembled articles entitled to the exemption are considered
                products of the country of assembly for the purposes of the
                country of origin marking requirements of section 304,
                Tariff Act of 1930, as amended (19 U.S.C. 1304).  If an
                imported assembled article is made entirely of American-
                made materials, the United States origin of the material
                may be disclosed by using a legend such as "Assembled in
                _______ from material of U.S. origin," or a similar phrase.
          Assuming the batteries are eligible for the partial duty
          exemption under subheading 9802.00.80, HTSUS, they are considered
          products of Mexico for country of origin marking purposes and
          must be marked accordingly.
          Battery charger
                Products of the United States exported and returned are
          excepted from the general country of origin marking requirements.
          See section 134.32(m), Customs Regulations (19 CFR 134.32(m)).
          This provision applies if the U.S. products are returned without
          having been substantially transformed abroad.  In this case,
          nothing is done to the battery charger except packaging, which is
          clearly not a substantial transformation.  Therefore, the charger
          is excepted from marking under 19 CFR 134.32(m).
          Adapter
                Assuming that the adapter is a product of Haiti, and that
          it contains no U.S. components, it must be marked to indicate its
          Haitian origin.
                Pursuant to 19 CFR 134.32(d), you may mark the container,
          i.e., the blister packaging material, instead of the individual
          articles, if marking the packaging will reasonably indicate to
          the ultimate purchaser the country of origin of each article, and
          provided that the individual articles do not bear any words,
          letters, names, or symbols described in sections 134.46 or
          134.47, Customs Regulations (19 CFR 134.46-134.47), such as U.S.
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          addresses, which imply that they were made or produced in a
          country other than the actual country of origin.  If the blister
          packaging obscures the country of origin marking on the
          individual items, then the packaging must be marked to specify
          the country of origin of each item with words such as:
          "Battery - Made in Mexico; Adapter - Made in Haiti."
                For advice on any marking of the battery charger to
          indicate that it is made in the U.S., we suggest that you contact
          the Federal Trade Commission.
          HOLDING:
                Because the essential character of the set is imparted by
          the U.S. origin battery charger, the entire rechargeable battery
          set is dutiable on its full value, under subheading 8504.40.00,
          HTSUS, at the "Column 1 General" duty rate of 3 percent ad
          valorem, less the cost or value of the U.S. components comprising
          the assembled batteries.  Additionally, a classification
          allowance may be made under subheading 9801.00.10, HTSUS, for the
          cost or value of the U.S. battery charger.
                Since none of the items in the rechargeable battery set is
          substantially transformed as a result of its inclusion in the
          set, each item is required to be marked to indicate its own
          country of origin, unless excepted.  The batteries should be
          marked as products of Mexico and the adapter as a product of
          Haiti.  The battery charger of U.S. origin is excepted from
          marking under 19 CFR 134.32(m).
                                        Sincerely,
John Durant, Director
                                        Commercial Rulings Division