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

(1949).)

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

Commercial Rulings Division