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HQ 955635





April 6, 1994

CLA-2 CO:R:C:T 955635 BC

CATEGORY: CLASSIFICATION

TARIFF NO.: 4421.90.9540

Eugene P. Kerven
District Director of Customs
U.S. Customs Service
300 Second Avenue, South
Great Falls, Montana 59401

RE: Application for further review of protest no. 3304-93- 100041; classification of used railroad ties; landscaping timbers; principal use; condition as imported; HRL 954924

Dear Mr. Kerven:

This is a decision on an application for further review of a protest timely filed by Holje Customs Brokers, Inc., on behalf of Cando Contracting. The protest objects to your decision concerning the classification of used railroad ties imported into the United States for use as landscaping timbers.

FACTS:

The merchandise at issue are 6 inch x 8 inch x 9 foot pieces of lumber that have been used as railroad ties in Canada. After such use, they are imported into the United States for use principally in landscaping. They are not imported for use as railroad ties, nor are they so used, in the United States.

The Customs Protest and Summons Information Report (CF 6445A) indicates that the used ties, by the time of entry, probably have been in use in Canada as railroad ties for approximately 25 years. Consequently, they would be notched from wear. Also, they would have been treated with creosote prior to being put into use initially as railroad ties.

The used ties were entered on July 21, 1993, under subheading 4406.90.0000, Harmonized Tariff Schedule of the United States Annotated (HTSUSA), which provides for railroad ties of wood that have been impregnated. On September 14, 1993, Customs issued a Notice of Action (CF 29) informing the importer that the entry was to be liquidated under subheading 4421.90.9540, HTSUSA, which provides for other articles of wood. The entry was liquidated on November 5, 1993, and this protest was timely filed on November 19, 1993. In the protest, the importer contends that the used ties should be classified as railroad ties under heading 4406, HTSUSA.

ISSUE:

Are used railroad ties that are no longer suitable for use as railroad ties and are imported for use principally as landscape timbers classifiable as railroad ties under heading 4406, HTSUSA, and, if not, what is the proper classification?

LAW AND ANALYSIS:

In Headquarters Ruling Letter (HRL) 954924, dated December 7, 1993, we addressed the issue of classification of used railroad ties from Canada. There, the used ties were described as no longer fit for use as railroad ties. They were imported for use as landscaping timbers. They were not being sold to, or used by, railroad companies. The ruling held the following:

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. . . . If the used railroad ties are further manufactured, they are classifiable as other articles of wood under heading 4421, HTSUSA.

The recipient of HRL 954924, a customs broker, submitted that ruling request on behalf of the party in this protest identified on the CF 6445A as the seller and shipper, Cando Contracting of Brandon, Manitoba, Canada. It appears that the used ties that were ruled upon in HRL 954924 are the same kind of ties at issue in this protest.

The only contention in this protest is that used railroad ties are nonetheless railroad ties and should be so classified regardless of their condition or their use after importation as landscape timbers. It is argued that heading 4406, HTSUSA, is not a use provision and that railroad ties, new or used, should be classified as such under that eo nomine provision.

Heading 4406, HTSUSA, provides for the following:

4406 Railway or tramway sleepers (cross-ties) of wood:

4406.10.00 Not impregnated.

4406.90.00 Other.

The Explanatory Notes (EN's) to the Harmonized Commodity Description and Coding System provide the following for heading 44.06 (Vol. 2, p. 626):

This heading covers unplaned wood in pieces of more or less rectangular section of the kind commonly used to support railway or tramway track. The heading also includes switch ties, which are longer than sleepers, and bridge ties, which are wider and thicker and usually longer than sleepers.

The edges of these products may be roughly chamfered and they may be provided with holes or seatings for fixing the rails or chairs. They may also sometimes be strengthened at the ends by means of staples, nails, bolts or steel strips to prevent their splitting.

The products of this heading may be surface treated with insecticides or fungicides for the purpose of protection. For long-term preservation, they are often impregnated with creosote or other substances.

The language of the heading and the EN's clearly indicates that heading 4406, HTSUSA, is a use provision. It covers sawn pieces of lumber used for tracking, such as railroad track and tramway track: sleepers, switch ties, and bridge ties. We do not agree with the claim made in the protest that heading 4406, HTSUSA, is not a use provision. (Note that a tariff provision based on use need not contain the words "used for," or something similar. E.C. Lineiro v. United States, 37 CCPA 10, 14, C.A.D. 411

Additional U.S. Rule of Interpretation 1(a) provides the following:

1. In the absence of special language or context which otherwise requires --

(a) a tariff classification controlled by use (other than actual use) is to be determined in accordance with the use in the United States at, or immediately prior to, the date of importation, of goods of that class or kind to which the imported goods belong, and the controlling use is the principal use.

One effect of designating a tariff provision as a use provision is to require that a particular article belong to a certain class or kind of article in order to be classified within that provision. If it belongs to that class or kind of article, it is classifiable within that provision regardless of how it is used after importation. (The class or kind is defined by the principal use of that class or kind of article in the United States at or immediately before the time of entry.) Railroad ties are used for railroad tracking. In fact, they must meet certain specifications of the American Railway Engineering Association in order to be so used. This limitation, an important safety standard, defines the class. Sawn pieces of lumber that do not meet specifications cannot be used as railroad ties and thus fall outside the class; sawn pieces of lumber that meet specifications can be used as railroad ties and are within the class.

The goods at issue in this protest - whether they are referred to as pieces of lumber or used railroad ties - are imported into the United States in a used condition, such that they do not meet requisite specifications and are no longer usable as railroad ties; instead, they are used principally as landscape timbers. Goods are classified under the HTSUS in their condition as imported. United States v. Citreon, 223 U.S. 407 (1911). The NIS for this commodity stated that used railroad ties are used principally in the landscaping business. Since the used railroad ties in question, unlike new, unused railroad ties, are not used principally as railroad ties, they are not classifiable as railroad ties within the scope of heading 4406, HTSUSA; they are not of the class or kind of sawn lumber which qualify for use as railroad ties.

The CF 6445A cites several rulings that are alleged to support the importer's view that a used article is nonetheless classified in the tariff provision providing for that article. It would follow from this proposition that the used railroad ties should be classified as railroad ties in heading 4406, HTSUSA. Although we do not here rule on this proposition, neither do we reject it. On certain facts, it may apply. However, on the facts of the instant case, it is inapplicable. Further, three of the four rulings cited do not support the proposition or the importer's contention that the used ties at issue should be classified as railroad ties. In New York Ruling Letter (NYRL) 863044, dated May 16, 1991, Customs classified non-reusable wood pallets that were crushed and broken under subheading 4401.30.4090, HTSUSA, which provides for wood waste and scrap, not as wood pallets under heading 4415, HTSUSA. In NYRL 884063, dated April 1, 1993, reusable wood pallets were classified under heading 4415, HTSUSA, and non-reusable pallets were classified as wood waste and scrap under heading 4401, HTSUSA. In NYRL 867195, dated October 9, 1991, Customs classified as netting articles made from used (worn out) commercial fishnetting. The imported articles were not "used fishnetting"; they were articles in their own right made from material cut from used fishnetting. The other ruling cited, Headquarters Ruling Letter (HRL) 951326, dated May 29, 1992, classified used lead-acid batteries as batteries under heading 8507, HTSUSA. They had been entered as lead waste and scrap under heading 7802, HTSUSA. It was determined that both headings applied equally to the used batteries and that neither aspect of the articles imparted essential character. Therefore, the batteries were classified under the heading for batteries on the basis of GRI 3(c). This case is also distinguishable from the instant case, where used railroad ties do not meet the specifications for railroad ties, are imported for use principally as landscape timbers, and thus do not fall within the class or kind of sawn wood used as railroad ties.

Based on the foregoing, we conclude that the rulings cited in the CF 6445A are not applicable to the instant case.

Finally, after review of the arguments made in this protest, which necessarily have prompted a review of HRL 954924, we conclude that the ruling is correct in its holding that used railroad ties that no longer meet specifications for use as railroad ties and are imported into the United States for use as landscape timbers are not classifiable as railroad ties under heading 4406, HTSUSA. As stated in that ruling, such ties are classifiable under heading 4407, HTSUSA, which provides for sawn pieces of lumber exceeding a thickness of 6 mm, unless they have been advanced by processing beyond planing, sanding, or finger- jointing, in which case they would be classifiable under heading 4421, HTSUSA, which provides for other articles of wood not provided for in other headings of Chapter 44. The merchandise at issue in this protest was classified in subheading 4421.90.9540, HTSUSA. We assume that the used ties were advanced in some way sufficient to warrant classification in that heading. This information is not contained in the protest record.

HOLDING:

This protest is DENIED. Used railroad ties that no longer meet specifications for use as railroad ties are sawn pieces of lumber used principally as landscape timbers. If further manufactured, they are classifiable in subheading 4421.90.9540, HTSUSA. If not further manufactured, they are classifiable under heading 4407, HTSUSA. The precise subheading under heading 4407, HTSUSA, will depend on the type of wood and other characteristics. We note that merchandise classified in heading 4407, HTSUSA, that is of a softwood variety falling within the scope of the Canadian lumber CVD order should be processed accordingly.

In accordance with Section 3A(11)(b) of Customs Directive 099 3550-065, dated August 4, 1993, 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 entries 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 Rulings Module in ACS and the public via the Diskette Subscription Service, Lexis, Freedom of Information Act, and other public access channels.

Sincerely,

John Durant, Director

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