Steel posts used as fence posts

HQ 084528 November 8, 1989 CLA-2 CO:R:C:G 084528 TLS CATEGORY: Classification TARIFF NO.: 7326.90.90 Kent Sunakoda James J. Boyle & Co. 311 South Spring Street Los Angeles, California 90013 RE: Steel posts used as fence posts Dear Mr. Sunakoda: You requested a ruling on behalf of your client, Ssangyong (USA) Inc., Garden Grove, California, on the classification of steel posts to be used as fence posts, under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA). We have been asked to review N.Y. letter 830751 of July 13, 1988, which held these posts to be classifiable under subheading 7308.90.9090, HTSUSA. FACTS: The steel post at issue is made of roll formed steel from electro-galvanized steel sheet with a wall thickness of 0.093". Its configuration is triangular and both ends of the steel are bent inward with a small space allowed for the fittings which will accept the fencing material. The post will be imported in 21' lengths and is intended to be used as a fence post. ISSUE: Under which of the following headings is the steel post properly classified: 1) 7308, HTSUSA, covering structures and parts of structures of iron or steel; tubes and the like, prepared for use in structures, of iron or steel; 2) 7326, HTSUSA, covering other articles of iron or steel. LAW AND ANALYSIS: The General Rules of Interpretation (GRI) govern classification under the HTS. GRI 1 requires that classification be determined according to the terms of the headings and any relative section or chapter notes. It is evident from the description provided by the importer that the steel post is not a structure as the term is customarily used. This heading refers to buildings and permanent fixtures, such as bridges and towers, as structures. The Explanatory Notes (EN) of the HTSUSA offer additional guidance when determining the proper classification of an article. The EN for heading 7308 explains that this heading covers structures that are characterized by the fact that once they are put in position, they generally remain in that position. A steel post of the type being used here does not necessarily remain in position once put there. It can be moved to different positions and to different locations depending on the boundaries it is used to protect. While the steel post under consideration can remain fixed in one place after being put in position, it does not have the permanency of a tower or an iron gate, for instance. The steel post does not belong under 7308 as a structure. The EN further describes the type of article covered by 7308 as shutters, gates, sliding doors, assembled railings and fencing. A fence post is not included in this class of merchandise. We note that this type of fence post can be used to string a single strand of barbed wire or a single charged electrical wire. In some cases the fence can extend for many miles. Such a single strand fence does not seem to us to be included within the terms "structure" and "parts of structures" as contemplated by the heading. The 7326 heading applies to other articles of iron or steel not otherwise provided for in the HTS. The steel post is not mentioned by name or description anywhere in the HTS. However, the EN for heading 7326 states that the heading includes, among other things, fence posts. For these reasons we find the steel posts offered for classification here fall within the terms of this heading. HOLDING: The steel posts to be used as fence posts are properly classified under subheading 7326.90.9090, HTSUSA, as an article of iron or steel. Inasmuch as N.Y. letter 830751 no longer reflects the position of the Customs Service, it is modified pursuant to 19 C.F.R. 177.9(d). Sincerely, John Durant, Director Commercial Rulings Division