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NY 802004




September 29, 1994

CLA-2-44:S:N:N8:230 802004

CATEGORY: CLASSIFICATION

TARIFF NO.: 4407.10.0005; 4421.90.9540

Ms. Loretta J. Evans
Fritz Companies, Inc.
P.O. Drawer "G"
Blaine, WA 98230

RE: The tariff classification of used railroad ties from Canada; principal use; class or kind.

Dear Ms. Evans:

In your letter dated June 20, 1994, on behalf of your client, Pacific Northern Rail Contractors Corp. (Clearbrook, B.C., Canada), you requested a tariff classification ruling. In a letter dated August 22, 1994, your client submitted additional information directly to this office in response to questions which we sent to you on July 19, 1994.

The goods in question are used wooden "relay ties" (railroad ties) dating from 1976 to 1982. They are creosote-treated spruce, pine or fir, and measure 7" x 9" x 8' and 7" x 9" x 9'.

You indicate that the ties conform to American Railway Engineering Association standards for track structures, and that they are in fact being imported for relay purposes, i.e., to upgrade or rehabilitate existing railroad trackage. Letters from two actual users of the ties (Central Montana Rail, Inc. and Condon Brothers, Inc.) were submitted as verification of this circumstance.

You note that used railroad ties not meeting specifications and imported primarily for use as landscaping timbers were previously classified by Customs as lumber or as articles of wood. You suggest, however, that since the instant relay ties do meet specifications and are actually for installation on railway track, they should be eligible for classification in heading 4406, Harmonized Tariff Schedule of the United States Annotated (HTSUSA), which provides for railway or tramway sleepers (cross-ties) of wood.

While we understand your reasoning, we find that heading 4406 is not an "actual-use provision," i.e., that it is not governed by the particular use to which specific articles entered under it are put. It is, however, a "use provision" as outlined in Additional U.S. Rule of Interpretation 1(a), HTSUSA: "In the absence of special language or context which otherwise requires--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." (Emphasis supplied.)

We are of the opinion that, as a class or kind, new or unused railroad ties are principally used in railroad construction/rehabilitation, but that used railroad ties are principally used as landscape timbers. In this context, we find that used ties, regardless of how they are employed after importation, do not belong to that class or kind of good which can properly be classified as railroad ties.

Accordingly, the applicable tariff provision for the used "relay ties," when imported in the condition of treated pieces of lumber, not further manufactured, will be 4407.10.0005, HTSUSA, which provides for wood sawn or chipped lengthwise, sliced or peeled, whether or not planed, sanded or finger-jointed, of a thickness exceeding 6 mm: coniferous...treated with paint, stain, creosote or other preservative. The general rate of duty will be free. (Holes made by spikes or other nails would not be considered "further manufacturing.") If the ties are imported in a further-manufactured condition (for example, with metal anti-splitting devices pressed into their ends), the applicable subheading will be 4421.90.9540, HTSUSA, which provides for other (non-enumerated) articles of wood. The general rate of duty will be 5.1%.

This ruling is being issued under the provisions of Part 177 of the Customs Regulations (19 CFR 177).

A copy of this ruling letter should be attached to the entry documents filed at the time this merchandise is imported. If the documents have been filed without a copy, this ruling should be brought to the attention of the Customs officer handling the transaction.

Sincerely,

Jean F. Maguire

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