HQ 0953360 - Application for further review of Protest No. 0712-92-100996, dated September 4, 1992; railroad welding kit; calorite; thermite; welding powder; FTA - United States International Trade Commision Rulings

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HQ 953360

May 4, 1994

CLA-2 CO:R:C:F 953360 EAB

CATEGORY: CLASSIFICATION

TARIFF NO.: 3810.10

District Director
U.S. Customs Service
U.S. Customhouse
Champlain, New York 12919

RE: Application for further review of Protest No. 0712-92-100996, dated September 4, 1992; railroad welding kit; calorite; thermite; welding powder; FTA

Dear Sir:

This is a decision on a protest filed September 4, 1992, against your decision in the classification of merchandise entered on April 27, 1992 and liquidated on July 24, 1992.

FACTS:

Protestant entered the merchandise under subheading 3810.10, Harmonized Tariff Schedule of the United States Annotated (HTSUSA) and claimed duty preference under the United States-Canada Free Trade Agreement (FTA).

Customs assessed duty at the column one general rate.

The merchandise is marketed as a thermite welding charge for use in the welding of railroad rails. The welding process is also identified by the term "calorite." The welding kit at issue consists of a sand mold, a bag of fusil paste, a self-tapping thimble, an ignitor and a bag of thermite powder charge. Thermite is a mixture of aluminum and ferric oxide. The thermite is made in France and the kit is put up in Canada.

ISSUE:

What is the classification and rate of duty of a railroad rail welding set put up in Canada, the essential constituent of which is thermite made in France?

LAW AND ANALYSIS:

Merchandise imported into the U.S. is classified under the HTSUSA. Tariff classification is governed by the principles set forth in the General Rules of Interpretation (GRIs) and, in the absence of special language or context which otherwise requires, by the Additional U.S. Rules of Interpretation. The GRIs and the Additional U.S. Rules of Interpretation are part of the HTSUSA, and are to be considered statutory provisions of law for all purposes.

GRI 1 requires that classification be determined first according to the terms of the headings of the tariff schedule and any relative section or chapter notes and, unless otherwise required, according to the remaining GRIs taken in their appropriate order.

GRI 3(b) requires that mixed or composite goods or a set put up for retail sale be classified as if it consisted of the material or component which imparts the essential character.

We find that the essential character of the merchandise is imparted by the thermite welding powder. Welding powders consisting of metal and other materials are classified under heading 3810.10, HTSUSA.

Whereas the country of origin of the essential component of the subject merchandise is France, we find that the railroad welding kit did not qualify for special duty treatment under the U.S.-Canada Free Trade Agreement.

HOLDING:

The protest should be denied.

A railroad welding kit the essential component of which is a Calorite/thermite mixture prepared in France, is classifiable under subheading 3810.10, HTSUSA, a provision for pickling preparations for metal surfaces; soldering brazing or welding powders and pastes consisting of metal and other materials.

Merchandise imported in 1992 under the foregoing provision was not eligible for special duty rates under the U.S.-Canada Free Trade Agreement and was dutiable at the column one general rate of duty of 5 percent ad valorem.

A copy of this decision should be attached to the Customs Form 19 and provided to the protestant as part of the notice of action on the protest.

In accordance with Section 3A(11)(b) of Customs Directive 099 3550-065, dated August 4, 1992, Subject: Revised Protest Directive, this decision should be mailed by your office to the protestant no later than 60 days from the date of this letter. Any reliquidation of the entry in accordance with the decision must be accomplished prior to mailing of the decision. Sixty days from the date of the decision the Office of Regulations and Rulings will take steps to make the decision available to customs personnel via the Customs Ruling Module in ACS and the public via the Diskette Subscription Service, Lexis, Freedom of Information and other public access channels.

Sincerely,

John Durant, Director

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