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Importer Says Its Fence Posts Are Swaged, Fit Under HTS Heading 7308

Importer Midwest Air Technologies' swaged line and corner posts should be classified as parts for structures under Harmonized Tariff Schedule heading 7308, and not under a heading 7306 as "other tubes," Midwest Air said in a Nov. 14 complaint at the Court of International Trade. The company said that a prior customs ruling covering "the same or substantially similar merchandise" shows that swaged line and corner posts fit under heading 7308 and not 7306, freeing the company of Section 232 steel and aluminum duty liability (Midwest Air Technologies v. United States, CIT # 23-00240).

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Midwest Air makes residential, farm and recreational fencing products with a patented style of posts. This post style includes a swaged end, whereby the metal widens out so as to more securely fasten the end cap on the post. Its goods are made by its Vietnamese affiliate, Vietnam Haiphong Hongyuan Machinery Co. and were hit with Section 232 steel and aluminum duties by CBP under HTS heading 7306.

At CBP and now at the trade court, Midwest Air is claiming its goods fall under heading 7308, which covers iron or steel structures and parts of structures. According to the heading's Explanatory Note, it also covers "assembled railings and fencing" and its "parts" including tubes that have been "prepared" for use in structures. The note added that parts under this heading heading "once they are put in position," generally stay in that position.

Midwest Air claimed that CBP has "consistently classified swaged steel posts under HTS 7308," pointing to two prior rulings where the agency classified swaged chain link posts under heading 7308. "In reaching its classification determination, CBP considered germane only whether the posts were straight versus those that were swaged," the complaint said. However, in rejecting Midwest Air's protest, the agency said these rulings were only limited to the specific products under review and didn't extend to the patented posts.

The importer's protest included an Application for Further Review, which said that "the classification of swaged line and swaged corner posts under HTS Heading 7306 was inconsistent with a decision made by CBP, where the same or substantially similar merchandise had been classified under HTS 7308." In denying the AFR and the protest, CBP said that Midwest Air's products didn't have swaged ends. The importer said this claim was made "plainly in error," especially since the agency didn't give any reasoning as to how it came to this conclusion.