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HQ W968231




August 6, 2007

CLA-2 OT:RR:CTF:TCM W968231 ADK

CATEGORY: CLASSIFICATION

TARIFF NO.: 7326.90.8587

United States Customs and Border Protection C/O Jennifer Tagliaferro
Protest and Control
1100 Raymond Blvd, Suite 402
Newark, NJ 07102

RE: Stainless steel forged flanges; Protest No. 4601-06-100726

Dear Port Director:

The following is our decision regarding the Application for Further Review (“AFR”) of Protest No. 4601-06-100726, timely filed on behalf of Jorgensen Forge Corporation (Jorgensen) concerning classification of the flanges for containers under the Harmonized Tariff Schedule of the United States (HTSUS).

FACTS:

The subject merchandise is an unfinished stainless steel forged cover/lid for a Dry Cask Storage System (DCSS). The DCSS is used for permanent storage of nuclear fuel assemblies. The specific portion of the storage cask involved here is a circular piece of forged stainless steel, approximately 5 tons in weight, 6 feet in diameter and 10 inches thick. After entry to the United States, the cover undergoes further processing which involves the machining and drilling of holes for gauges. Quick Connective plugs are also welded in the vent hole and the drain hole. The storage casks are designed to be filled with gas and permanently closed.

Upon entry, the Port at Newark liquidated the subject merchandise under subheading 8309.90.9000, Harmonized Tariff Schedule United States Annotated (HTSUSA), which provides for: “Stoppers, caps and lids (including crown corks, screw caps and pouring stoppers), capsules for bottles, threaded bungs, bung covers, seals and other packing accessories, and parts thereof, of base metal: Other.”

Jorgensen argues that the subject cover should be classified under subheading 7309.00.0090, HTSUSA, which provides for: “Reservoirs, tanks, vat and similar containers for any material (other than compressed or liquefied gas), of iron or steel, of a capacity not exceeding 300 liters, whether or not lined or heat insulated, but not fitted with mechanical or thermal equipment: Other.”

ISSUE:

What is the proper classification, under the HTSUS, for the subject stainless steel cover?

LAW AND ANALYSIS:

Initially, we note that the matter is protestable under 19 U.S.C. § 1514(a)(2) as a decision on classification. The protest was timely filed, within 180 days of liquidation of the last entry made on September 8, 2005. (Miscellaneous Trade and Technical Corrections Act of 2004, Pub.L. 108-429, § 2103(2)(B)(ii), (iii) (codified as amended at 19 U.S.C. § 1514(c)(3) (2006)).

Further Review of Protest No. 4601-06-100726 was properly accorded to protestant pursuant to 19 C.F.R. § 174.24 (a) because the decision against which the protest was filed involves or is alleged to be inconsistent with a ruling of the Commissioner of Customs or his designee, or with a decision made at any port with respect to substantially similar merchandise.

Classification under the HTSUS is made in accordance with the General Rules of Interpretation (GRIs). GRI 1 provides that the classification of goods shall be determined according to the terms of the headings of the tariff schedule and any relative section or chapter notes. In the event that the goods cannot be classified solely on the basis of GRI 1, and if the headings and legal notes do not otherwise require, the remaining GRIs 2 through 6 may then be applied in order. The HTSUS provisions under consideration are as follows:

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 equipment.

7309.00.00.90 Other

7326 Other articles of iron or steel:

7326.90 Other:
Other:

Other:

7326.90.85 Other.

7326.90.8587 Other

8309 Stoppers, caps and lids (including crown corks, screw caps and pouring stoppers), capsules for bottles, threaded bungs, bung covers, seals and other packing accessories, and parts thereof, of base metal:

8309.90.00.00 Other

The Harmonized Commodity Description and Coding System Explanatory Notes (ENs) constitute the official interpretation of the Harmonized System at the international level. While not legally binding nor dispositive, the ENs provide a commentary on the scope of each heading of the HTSUS and are generally indicative of the proper interpretation of these headings. See T.D. 89-80. The EN to heading 8309, HTSUS (EN 8309), provides, in pertinent part:

This heading covers a range of articles of base metal (often with washers or other fittings or plastics, rubber, cork, etc.) used for corking or capsuling drums, barrels, bottles, etc., or for sealing cases or other packages.

This heading includes:

(1) Metal stoppers, caps and lids, e.g., crown corks, crown caps or crown seals; stoppers, caps and covers of the screw, clip, lever, spring, etc., types as used for corking or capping beer bottles, mineral water bottles, preserve jars, tubular containers or the like.

The subject import is an incomplete or unfinished portion of a DCSS. Classification of incomplete or unfinished merchandise is made pursuant to GRI 2(a). That rule provides, in pertinent part:

Any reference in a heading to an article shall be taken to include a reference to that article incomplete or unfinished, provided that, as entered, the incomplete or unfinished article has the essential character of the complete or finished article. (Emphasis added)

In their AFR, counsel for Jorgensen argues that the subject stainless steel cover is classifiable under heading 7309, HTSUS, as a reservoir, tank, vat or similar container. Counsel’s argument relies primarily on HQ 963163, dated February 7, 2000. In that ruling, CBP determined that an open-end cylindrical shield shell forging of carbon steel with the “precise dimensions of a complete dry storage cask,” was an incomplete or unfinished container of heading 7309, HTSUS. The cylindrical shell of HQ 963163 was imported in the exact shape and size of the DCSS reservoir. The subject cover, however, is not a reservoir, tank, vat or container but rather a circular disk of metal designed to cover and seal the container. Prior to entry, the subject cover is made to the exact weight and size of the DCSS lid. Furthermore, the forged stainless steel carries a precise tolerance, designed to contain nuclear fuel assemblies. Unlike the import classified in HQ 963163, the subject article has the essential character of the finished DCSS lid not the reservoir tank itself. As a result, it is excluded from classification under heading 7309, HTSUS.

Base metal covers or lids, such as the subject article, are potentially classifiable under heading 8309, HTSUS, and heading 7326, HTSUS. Heading 8309, HTSUS, provides specifically for metal lids and seals. Heading 7326, HTSUS, on the other hand is a basket provision and applies only if the merchandise is not more specifically described elsewhere.

Upon entry, you classified the DCSS cover under heading 8309, HTSUS, which provides for: “Stoppers, caps and lids (including crown corks, screw caps and pouring stoppers), capsules for bottles, threaded bungs, bung covers, seals.” Examples of such articles include “beer bottles, mineral water bottles [and] preserve jars.” EN 8309. Neither the legal text not the ENs specifically mention metal covers of this kind. Classification is therefore dependent upon the canon of construction known as ejusdem generis which literally means “of the same class or kind.” Ejusdem generis teaches that “where particular words of description are followed by general terms, the latter will be regarded as referring to things of a like class with those particularly described.” Nissho-Iwai American Corp. v. United States (Nissho), 10 CIT 154, 156 (1986). “As applicable to classification cases, ejusdem generis requires that the imported merchandise possess the essential characteristics or purposes that unite the articles enumerated eo nomine in order to be classified under the general terms.” Id. at 157. At issue is whether the subject stainless steel cover possesses the same essential characteristics as the named articles in the legal text to heading 8309, HTSUS and the exemplars in EN 83.09.

The named exemplars of EN 83.09 are all relatively lightweight, small articles which are capable of easy transport. Accordingly, CBP has classified only small, lightweight items under heading 8309, HTSUS. See Headquarters Ruling (HQ) 087308, dated September 28, 1990 (Lids for small containers of aluminum foil less than 0.2mm in thickness classified under subheading 8309.90.0000, HTSUSA); HQ 084125, dated February 26, 1990 (Silver plated brass bottle stoppers classified under subheading 8309.90.0000, HTSUSA); New York Ruling Letter (NY) B80022, dated December 23, 1996 (Lids for empty tinplate cans classified under subheading 8309.90.0000, HTSUSA); and NY A80026, dated February 20, 1996 (Lids for plastic and steel pails classified under subheading 8309.90.0000, HTSUSA). The subject stainless steel cover measures at least 6 feet in diameter and is up to 10 inches thick. The completed DCSS weighs between 9500 pounds to 5 tons

One pound = 0.0005 tons. Unlike the exemplars of heading 8309, HTSUS, the subject stainless steel cover is not small, lightweight or easily transportable. By application of ejusdem generis, the stainless steel covers are excluded from classification under heading 8309, HTSUS. In the absence of a more specific heading, the unfinished stainless steel covers are classifiable in the basket provision of heading 7326, HTSUS, as other articles of iron or steel.

HOLDING:

By application of GRI 1, the stainless steel cover is classifiable under heading 7326, HTSUS. It is provided for under subheading 7326.90.8587, HTSUSUA which provides for: “Other articles of iron or steel: Other: Other: Other: Other: Other.” The column one, general rate of duty is 2.9 percent ad valorem.

Since the rate of duty under the classification indicated above is more than the liquidated rate, the protest is DENIED in full. In accordance with the Protest/Petition Handbook (CIS HB, January 2002, pp. 18 and 21), 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 in accordance with the decision must be accomplished prior to mailing of this decision. Sixty days from the date of the decision the Office of International Trade will make the decision available to CBP personnel, and to the public on
the CBP Home Page on the World Wide Web at www.cbp.ogv, by means of the Freedom of Information Act, and other methods of public distribution.

Sincerely,

Myles B. Harmon, Director
Commercial and Trade Facilitation Division

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