HQ 953266

October 1, 1993

CLA-2 CO:R:C:M 953266 RFA

CATEGORY: Classification

TARIFF NO.: 8516.90.20


District Director of Customs
610 S. Canal Street
Chicago, IL 60607

RE: Protest No. 3901-92-101234; zinc endcaps for household
ranges or stoves; articles of zinc; parts; Section XVI, Note
2(b); principal use; Additional U.S. Note 1(a); GRI 3(c)


Dear District Director:

The following is our decision regarding the request for
further review of Protest No. 3901-92-101234, which concerns the
classification of zinc endcaps under the Harmonized Tariff
Schedule of the United States (HTSUS). The subject entries were
liquidated on June 26, 1992. The protest was timely filed on
September 24, 1992.

FACTS:

The subject merchandise is zinc endcaps which are used in
the manufacture of cooking stoves and ranges. The endcaps are
designed to be used on cooking stoves and ranges in order to
protect the corner surfaces of the appliance against damage that
would lead to corrosion and rust and, ultimately, a shorter
appliance life. The endcaps also protect against injury to
persons or objects that come in contact with the corners of the
appliances on which they are used. The endcaps provide smooth,
safe edges to ensure against cuts and contact injuries.

The merchandise was entered under subheading 8516.90.20,
HTSUS, as parts of electric stoves. The entry was liquidated
under subheading 7321.90.30, HTSUS, as parts of stoves, ranges,
etc., of iron or steel.

The subheadings under consideration are as follows:

7321.90.30: Stoves, ranges. . . , and parts thereof, of
iron or steel: [p]arts: [o]f [stoves or
ranges]. . .

Goods classifiable under this provision have a general,
column one rate of duty of 4.2 percent ad valorem.

7907.90.30 Other articles of zinc: [o]ther: articles of
a type used for . . . kitchen use . . .

Goods classifiable under this provision have a general,
column one rate of duty of 3.4 percent ad valorem.

8516.90.20 . . . other electrothermic appliances of a
kind used for domestic purposes. . . ; parts
thereof: [p]arts: of cooking stoves, ranges
and ovens. . . .

Goods classifiable under this provision have a general,
column one free rate of duty.

ISSUE:

Whether the zinc endcaps are classifiable as a part of gas
or electric ranges or stoves, or as other articles of zinc under
the HTSUS?

LAW AND ANALYSIS:

Classification of merchandise under the HTSUS is in
accordance with the General Rules of Interpretation (GRI's),
taken in order. GRI 1 provides that classification shall be
determined according to the terms of the headings and any
relative section or chapter notes.

After further review of the merchandise, Customs has
determined that the merchandise is made from zinc and not iron or
steel. Heading 7321, HTSUS, provides for articles made of iron
or steel. Therefore, it is clear that the zinc endcaps cannot be
classified under heading 7321, HTSUS, because they are not made
from iron or steel.

The protestant argues that the merchandise should be
classified under heading 8516, HTSUS, because the zinc endcaps
are principally used on electric ranges. Additional U.S. Rules
of Interpretation 1(a) states that

[i]n the absence of special language or context which
otherwise requires-- a tariff classification controlled
by use (other than actual use) is to be determined in
accordance with the use in the United States at, or
immediately prior to, the date of importation, of goods
of that class or kind to which the imported goods
belong, and the controlling use is the principal use.

As support for this position, the protestant cites recent
industry studies showing that there are more electric stoves and
ranges than gas stoves and ranges being sold in the United
States. Because of these industry surveys, the protestant then
states that the zinc endcaps should be classified as parts of
electric stoves and ranges. Section XVI, note 2 provides as
follows:

Parts of machines (not being parts of the articles of
heading No. 84.84, 85.44, 85.45, 85.46 or 85.47) are to
be classified according to the following rules:

(a) Parts which are goods included in any of the
headings of Chapter 84 and 85 (other than headings
No. 84.85 and 85.48) are in all cases to be
classified in their respective headings;

(b) Other parts, if suitable for use solely or
principally with a particular kind of machine, or
with a number of machines of the same heading
(including a machine of heading No. 84.79 or
85.43) are to be classified with the machines of
that kind. However, parts which are equally
suitable for use principally with the goods of
headings No. 85.17 and 85.25 to 85.28 are to be
classified in heading 85.17;

(c) All other parts are to be classified in heading
No. 84.85 or 85.48.

Based upon the protestant's submission, it is clear that the
zinc endcaps are suitable for use principally with electric
ranges and stoves. Therefore, we would find that zinc endcaps
are classifiable as parts of electric ovens and ranges under
heading 8516, HTSUS, by application of Section XVI, Note 2(b) and
Additional U.S. Note 1(a).

However, even though there are more electric stoves and
ranges being sold in the United States than gas stoves and
ranges, the entry invoices described the merchandise as "zinc
endcaps used on gas household appliances". Based upon these
representations, we find that the principal use of the subject
merchandise cannot be determined. Therefore, the subject
merchandise is prima facie classifiable under two headings.

Because classification in a single heading cannot be
determined by applying GRI 1, we must apply the other GRI's. GRI
2(b) states that if a product is prima facie classifiable in two
or more headings, then GRI 3 applies.

Because the subject merchandise is a part which is used on
both gas and electric stoves and ranges and cannot be classified
by reference to GRI 3(a) or 3(b), we must apply GRI 3(c). GRI
3(c) provides that "[w]hen goods cannot be classified by
reference to Rule 3(a) or 3(b), they are to be classified in the
heading which occurs last in numerical order among those which
equally merit consideration in determining their classification."
Based upon the application of GRI 3(c), we find that the zinc
endcaps are classifiable under subheading 8516.90.20, HTSUS, as
parts of electric stoves and ranges.

HOLDING:

For the foregoing reasons, we find that the zinc endcaps are
classifiable under subheading 8516.90.20, HTSUS, as parts of
electric stoves and ranges.

The protest should be granted in full. A copy of this
decision should be attached to Customs Form 19 and provided to
the protestant as part of the notice of action on the protest.

Sincerely,


John Durant, Director