CLA-2 CO:R:C:T 954924 BC
Dave Walser
ARTHUR J. HUMPHRIES DIV.
Border Brokerage Co. Inc.
P.O. Box 249
Sumas, Washington 98295
RE: Classification of used railroad ties used as landscaping
timbers; Additional U.S. Rule of Interpretation 1(a); principle
use; condition as imported
Dear Mr. Walser:
This responds to your letter of July 23, 1993, concerning
the classification of used railroad ties imported into the United
States from Canada. We have reviewed the matter and our decision
follows.
FACTS:
You described the merchandise at issue as "used, treated, 6
X 8 [6" by 8"] square railroad ties." We understand that the
ties have been used as railroad ties in Canada but no longer are
fit for such purpose. According to a telephone conversation
between you and the National Import Specialist for this
commodity, the used railroad ties are imported into the United
States to be sold to lumber yards for use principally as
landscaping timbers. They are not sold to or used by railroad
companies.
ISSUE:
Are the used railroad ties at issue, which are imported into
the United States to be used as landscaping timbers, classifiable
as railroad ties under heading 4406, Harmonized Tariff Schedule
of the United States Annotated (HTSUSA), or as sawn wood (used as
landscaping timbers) under heading 4407, HTSUSA?
LAW AND ANALYSIS:
Classification under the HTSUSA is governed by the General
Rules of Interpretation (GRI). GRI 1 provides that
classification is determined in accordance with the terms of the
headings and any relative section or chapter notes. Where goods
cannot be classified solely on the basis of GRI 1, the remaining
rules will be applied in sequential order.
Heading 4406, HTSUSA, covers railway or tramway sleepers
(cross-ties) of wood. This heading covers railroad ties imported
into the United States for use as railroad ties. The question is
whether railroad ties, which, in their condition as imported, are
not fit for use as railroad ties and are used rather as
landscaping timbers, are classifiable under that heading. You
contend that a railroad tie is a railroad tie, and should be
classified as such, regardless of how it is used after
importation.
Under the Additional U.S. Rules of Interpretation, Rule
1(a), a tariff classification controlled by use (other than
actual use) is determined in accordance with the use to which
goods of a given class or kind are put at, or immediately prior
to, the date of their importation. The controlling use is the
principle use. The provision for railroad ties is a use
provision. A piece of lumber imported into the United States
that meets the specifications for railroad ties - and thus is of
a class or kind principally used as railroad ties - will be
classified as a railroad tie whether or not that particular piece
of lumber is actually used as a railroad tie. Conversely, if a
piece of lumber does not meet the specifications for railroad
ties, it is not of a class or kind principally used as railroad
ties. Hence, it is not classifiable under the railroad tie
provision. (Note that the American Railway Engineering
Association has issued specifications for railroad ties (referred
to as "timber cross ties"). These specify the characteristics
that are required for a piece of lumber to be accepted and used
as a railroad tie, from the kinds of wood used to make ties to
physical characteristics and dimensions. For obvious safety
reasons, the quality of railroad ties is controlled.)
The used railroad ties at issue do not meet the
specifications for railroad ties; because they are used, they are
no longer free from defects or possessive of the requisite
strength and durability. Therefore, they are not of the class or
kind of lumber used principally as railroad ties and, thus, are
not classifiable as railroad ties under heading 4406, HTSUSA. In
this case, it is undisputed that the used railroad ties are used
principally as landscaping timbers. Depending on their condition
as imported, they are classifiable under either heading 4407 or
4421, HTSUSA.
HOLDING:
Used railroad ties that no longer meet the specifications
for railroad ties and are used as landscaping timbers are
classifiable, if not further manufactured, under heading 4407,
HTSUSA, as wood sawn lengthwise of a thickness exceeding 6 mm.
(Holes made by spikes or other nails is not evidence of further
manufacturing.) The type of wood and other characteristics will
determine the precise subheading. You have not provided that
information. If the used railroad ties are further manufactured,
they are classifiable as other articles of wood under heading
4421, HTSUSA.
Note that Canadian softwood lumber under subheading
4407.10.00, HTSUSA, is subject to the Department of Commerce
Countervailing Duty Order. Thus, softwood lumber products from
Canada that are entered, or withdrawn from warehouse, for
consumption on or after July 13, 1992, are subject to a cash
deposit of 6.5% ad valorem.
Sincerely,
John Durant, Director
Commercial Rulings Division