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