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HQ 963163




FEBRUARY 7, 2000

CLA-2 RR:CR:GC 963163 JAS

CATEGORY: CLASSIFICATION

TARIFF NO.: 7309.00.00

Port Director of Customs
2nd and Chestnut Sts.
Philadelphia, PA 19106

RE: Protest 1101-99-100142; Steel Shield Shell (Gamma Shield)

Dear Port Director:

This is our decision on Protest 1001-99-100142, filed against your classification under the Harmonized Tariff Schedule of the United States (HTSUS), of carbon steel shield shells. The entry under protest was liquidated on April 23, 1999, and this protest timely filed on June 2, 1999.

FACTS:

The merchandise at issue is a cylindrical shield shell forging of carbon steel. Also referred to as a gamma shield, the shield shell is a straight, open-ended cylinder measuring 204 mm thick, 2317 mm outside diameter and 4293 mm long. It is made to American Society for Testing and Materials (ASTM) Specification A 266, for carbon steel forgings for boilers, pressure vessels, and associated equipment. After importation, the shield shell will be completed into a cask for the permanent dry storage of spent nuclear fuel. In the United States, a circular alloy steel inner shell, 38 mm thick, is slipped inside the shield shell. A bottom cover is then welded over one end of the shield shell and the other end machined to accommodate a top cover. In use, containers of spent nuclear fuel are inserted into the bottom-covered cask and a fabricated top cover bolted on. The protestant states that if the steel inner shell were to leak, the shield shell would keep the fuel encapsulated and prevent exposure of the fuel’s gamma rays to the atmosphere.

The shield shell was entered under a provision of heading 7309, HTSUS, for reservoirs, tanks, and similar containers for any material. Because the article at issue was imported incomplete or unfinished, and the entered provision does not provide for parts, the entry was liquidated under a provision of heading 7304, HTSUS, for tubes, pipes and hollow profiles, of iron or steel. A provision in heading 7326, HTSUS, other articles of iron or steel, has also been suggested.

The HTSUS provisions under consideration are as follows:

Tubes, pipes and hollow profiles, seamless, of ironor steel:

Other, of circular cross-section, of iron or nonalloy steel:

7304.31 Cold-drawn or cold-rolled (cold-reduced):

7304.39.00 Other

7309.00.00 Reservoirs, tanks, vats, and similar containers for any material (other than compressed or liquefied gas), of iron or steel, of a capacity exceeding 300 liters, whether or not lined or heat insulated, but not fitted with mechanical or thermal treatment

ISSUE:

Whether the steel shield shell forging is a good of heading 7304, or an incomplete or unfinished good of heading 7309.

LAW AND ANALYSIS:

Under General Rule of Interpretation (GRI) 1, Harmonized Tariff Schedule of the United States (HTSUS), goods are to be classified according to the terms of the headings and any relative section or chapter notes, and provided the headings or notes do not require otherwise, according to GRIs 2 through 6. GRI 2(a) states in part that incomplete or unfinished articles shall be classified as if complete or finished provided that, as imported, they have the essential character of the complete or finished article.

The Harmonized Commodity Description and Coding System Explanatory Notes (ENs) constitute the official interpretation of the Harmonized System. Though not dispositive, the ENs provide a commentary on the scope of each heading of the Harmonized System. Customs believes the ENs should always be consulted. See T.D. 89-80. 54 Fed. Reg. 35127, 35128 (Aug. 23, 1989).

As to the entered provision, the ENs on p. 2 state that GRI 2(a), HTSUS, applies to blanks unless they are specified in a particular heading. The ENs state the term “blank” means an article, not ready for direct use, having the approximate shape or outline of the finished article or part, and which can only be used, other than in exceptional cases, for completion into the finished article or part. Semi-manufactures not yet having the essential shape of the finished article (such as is generally the case with bars, discs, tubes, etc.) are not regarded as “blanks.” In this case, the steel shield shell conforms to a recognized industry specification for pressure vessel forgings and is manufactured to exacting dimensional specifications for a completed dry storage cask. It is processed after importation only by having a cover welded to the bottom portion and machining the top portion to accommodate a cover. The shield’s outer dimensions remain unchanged. While an inner shell of alloy steel is necessary to complete the dry storage cask, the shield shell itself, as imported, has the precise dimensions of a complete dry storage cask, and has the capability to shield the atmosphere from harmful gamma rays. Its high invoice price strongly suggests that it is economically feasible to complete the steel shield shell only into a dry storage cask for spent nuclear fuel. From the facts presented, we conclude that the steel shield shell conforms to the referenced EN description for blanks. For tariff purposes, it is an incomplete or unfinished container of heading 7309.

As to the liquidated provision, the General EN on p. 1099 states, in part, that for purposes of Chapter 73 the expression “tubes and pipes” includes concentric hollow profiles, of uniform cross-section with only one enclosed void along their whole length, having their inner and outer surfaces of the same form. The ENs, on pp. 1102-1104, state, in part, that tubes and pipes of heading 7304 may be manufactured by forging but that the heading excludes tubes and pipes made up into specific identifiable articles. The steel shield shell conforms to the General EN description, and it was manufactured by forging. However, it does not conform to any recognized tube and pipe industry specification. Moreover, in view of our finding that the steel shield shell is provided for in heading 7309, it necessarily follows that it is made up into a specific identifiable article, albeit incomplete or unfinished. For this reason, it is excluded from heading 7304. Heading 7326 covers iron or steel articles not included in the preceding headings of Chapter 73 or more specifically covered elsewhere in the HTSUS. Heading 7326 is likewise eliminated from consideration.

HOLDING:

Under the authority of GRI 2(a), HTSUS, the carbon steel shield shell is an incomplete or unfinished container of heading 7309. It is classifiable in subheading 7309.00.00, HTSUS.

The protest should be ALLOWED. In accordance with Section 3A(11)(b) of Customs Directive 099 3550-065, dated August 4, 1993, Subject: Revised Protest Directive, you are to mail this decision, together with the Customs Form 19, to the protestant no later than 60 days from the date of this letter. Any reliquidation of the entry or entries in accordance with the decision must be accomplished prior to mailing the decision. Sixty days from the date of the decision the Office of Regulations and Rulings will make the decision available to Customs personnel, and to the public on the Customs Home Page on the World Wide Web at www.customs.gov, by means of the Freedom of Information Act, and other methods of public distribution.

Sincerely,

John Durant, Director
Commercial Rulings Division

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