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HQ 954924


December 7, 1993

CLA-2 CO:R:C:T 954924 BC

CATEGORY: CLASSIFICATION

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

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