CLA-2 OT:RR:CTF:TCM H103165 HvB
Daniel P. Wendt
Miller & Chevalier Chartered
655 Fifteenth St., NW
Suite 900
Washington, DC 20005
RE: Reconsideration of NY J84680; Tariff Classification of used railway ties
Dear Mr. Wendt:
This letter is in response to your request of April 19, 2010, for reconsideration of New York Ruling Letter (NY) J84680, dated June 23, 2003, issued to Canadian Pacific Railway Company. (“Canadian Pacific”), as it pertains to the tariff classification of used wood railway ties under the Harmonized Tariff Schedule of the United States (HTSUS). In that ruling, U.S. Customs and Border Protection ("CBP") classified the subject used railway ties in heading 4407, HTSUS, which provides for: “Wood, sawn or chipped lengthwise, sliced or peeled, whether or not planed, sanded or end-jointed, of a thickness exceeding 6 mm.” In your request for reconsideration, you assert that the instant used railway ties are classified in heading 4401, HTSUS, which provides for “Fuel wood, in logs or billets, in twigs, in faggots or in similar forms; wood in chips or particles; sawdust and wood waste and scrap, whether or not agglomerated in logs, briquettes, pellets or similar forms. We affirm NY J84680 because the subject used railway ties are provided for eo nomine in heading 4407, HTSUS.
You submit that the instant used railway ties are classifiable as “fuel” in heading 4401, HTSUS, because you believe that the articles are principally used as fuel and because you assert that headings 4401 and 4407 are both “principal use” provisions. However, you do not provide any support for this argument. Furthermore, as we stated in Headquarters Ruling Letter (HQ) 962237, dated June 2, 1999, heading 4407, HTSUS, is an eo nomine provision providing for lumber. The Explanatory Note further explains that “[w]ith few exceptions, this heading covers all wood and timber, of any length but of a thickness exceeding 6 mm…” See also HQ 960703, dated August 26, 1997 and HQ 955365, dated April 6, 1994. We also note that the subject merchandise is not among the “fuel wood” exemplars listed in EN 44.01, such as “short piece of logs, usually with the bark.”
In your request for reconsideration, you do not dispute CBP’s description of the subject merchandise in NY J84680. Furthermore, we find that the arguments you present regarding Canadian and U.S. environmental regulations concerning the movement of hazardous waste are not persuasive. It is a long established principle that the characterization of imported merchandise by other governments and agencies is not dispositive for tariff classification. See Amersham Corp. v. United States, 5 CIT 49, 56, 564 F. Supp. 813, 817 (1983) (Noting that “statutes, regulations and administrative interpretations relating to ‘other than tariff purposes’ are not determinative of [CBP] classification disputes”). See HQ 962237, supra. Also, we note that in NY J84680, CBP considered the relevance of Canadian Pacific’s arrangments with co-generation facilities in classifying the subject merchandise.
For all the aforementioned reasons, we find that the subject used railway ties are classified in subheading 4407.10.01, HTSUS, which provides for “Wood, sawn or chipped lengthwise, sliced or peeled, whether or not planed, sanded or end-jointed, of a thickness exceeding 6 mm: Coniferous.” We therefore affirm NY J84680, dated June 23, 2003.
Sincerely,
Myles B. Harmon, Director
Commercial Trade Facilitation Division