#  HQ 963163

FEBRUARY 7, 2000

**CLA-2 RR:CR:GC** 963163 JAS

**CATEGORY:** Classification

**TARIFF NO.:** 7309.00.00

Port Director of Customs

2^nd^ 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.

\- 2 -

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:

7304. Tubes, pipes and hollow profiles, seamless, of iron...or 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).

\- 3 -

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.

\- 4 -

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