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HQ 956893




January 19, 1995

CLA-2 CO:R:C:M 956893 KCC

CATEGORY: CLASSIFICATION

TARIFF NO.: 8708.99.50

District Director
U.S. Customs Service
819 Water Street
Laredo, Texas 78040

RE: Protest 2304-94-100077; airbag sensors; sensor; wire harness; metal bracket; NY 840600; 8536.50.00; other switches; Kyocera International, Inc., v. United States; 9032.89.60; other automatic regulating and controlling instruments and apparatus; Note 6, Chapter 90; other parts and accessories of the motor vehicles of headings 8701 to 8705; EN 87.08; Note 2(f) and (g), Section XVII; General EN (III) PARTS AND ACCESSORIES, Section XVII; HRL 088477

Dear District Director:

This is in response to Protest 2304-94-100077, which pertains to the tariff classification of motor vehicle airbag sensors under the Harmonized Tariff Schedule of the United States (HTSUS). Information presented by counsel for the protestant at a meeting on December 5, 1994, and in an additional submission dated December 22, 1994, were taken into consideration in rendering this decision. Samples of the airbag sensors were submitted for our examination.

FACTS:

The articles under consideration are described as electro-mechanical crash sensors. The sensors are a component of a motor vehicle airbag system (airbag sensors). The imported airbag sensors consists of a sensor unit housed in a metal housing, a wire harness with connector and a metal bracket. The airbag sensors are designed for a specific model of car, so slight variations may occur. However, all the airbag sensors have the components described above and perform the same function of detecting when a motor vehicle is involved in a collision of the type which warrants the deployment of the airbag.

The protestant states that the airbag sensor functions by measuring the velocity change of the motor vehicle as it decelerates in a collision. If the velocity change reaches a pre-determined value during the collision, the sensing mass, i.e., the gold-plated sensing ball, automatically closes the electric circuit between the two gold-plated contacts. The current in the closed system then travels via the wire harness to the inflator which then discharges nitrogen gas into the actual airbag.

The sensor consists of a plastic, roughly cone shaped "body", approximately 1 1/4 inches in diameter at one end. Mounted at the top end of the body is a large cylindrical magnet. In some sensors there is a steel keeper which surrounds the magnet and holds it in place. In the body, beginning at the top end and moving downward, is a steel cylinder or tube which is encircled by a rubber sealing ring. Within the tube is a steel, gold plated sensing ball which is held to the top end of the body by the magnet. At the base of the plastic body is a plastic retainer which also is encircled by a rubber sealing ring. Mounted to the retainer are gold plated contacts which protrude through the retainer. Outside the retainer is a printed circuit board which is stuffed with various resistors and diodes. This sensor unit is mounted inside a metal housing. The housing measures approximately 1 1/4 inches wide, 2/ 1/2 inches long and 1/ 34 inches deep, and varies in size, etc. depending upon the particular sensor. After the senor unit is mounted inside the housing, an epoxy potting compound is poured into the housing to completely encapsulate the sensor unit. Attached to the circuit board are wires which run through a grommet in the side of the housing and continue to form a wire harness. At the end of the wire harness is an attached plastic connector. A metal bracket is welded to the sensor which is used to attach the sensor to the motor vehicle.

The entries of the airbag sensors were liquidated starting on January 3, 1994, under subheading 8536.50.00, HTSUS, as other switches. This classification was based on New York (NY) 840600 dated May 24, 1989, which determined that the protestant's electro-mechanical crash sensors were inertia switches classifiable under subheading 8536.50.00, HTSUS.

In a protest timely filed on April 1, 1994, the protestant contends that the airbag sensors are properly classified under subheading 9032.89.60, HTSUS, as other automatic regulating and controlling instruments and apparatus, or, alternatively under subheading 8708.99.50, HTSUS, as other parts and accessories of the motor vehicles of headings 8701 to 8705, or under 8543.80.95, HTSUS, as other electrical machines and apparatus, having individual functions, not specified or included elsewhere in this chapter. In its additional submission dated December 22, 1994, counsel for the protestant informed this office that only 7 of the 19 protested entries actually contained the airbag sensors at issue. These entries are M29-0024080-7, M29-0024161-5, M29-0024387-6, M29-0024388-4, M29-0024428-8, M29-0024432-0, and M29-0024505-3. Protestant has requested that the remaining 12 entries be stricken from the protest or its claims denied.

The competing subheadings are as follows:

8536.50.80 Electrical apparatus for switching or protecting electrical circuits, or for making connections to or in electrical circuits (for example, switches, relays, fuses, surge suppressors, plugs, sockets, lamp-holders, junction boxes), for a voltage not exceeding 1,000 V...Other switches...Other....

8543.80.95 Electrical machines and apparatus, having individual functions, not specified or included elsewhere in this chapter; parts thereof...Other machines and apparatus...Other...Other....

8708.99.50 Parts and accessories of the motor vehicles of headings 8701 to 8705...Other parts and accessories...Other...Other...Other....

9032.89.60 Automatic regulating and controlling instruments and apparatus; parts and accessories thereof...Other instruments and apparatus... Other...Other....

ISSUE:

Are the air bag sensors classified under subheading 8536.50.00, HTSUS, as other switches, or under subheading 9032.89.60, HTSUS, as other automatic regulating and controlling instruments and apparatus, or, under subheading 8708.99.50, HTSUS, as other parts and accessories of the motor vehicles of headings 8701 to 8705, or under 8543.80.95, HTSUS, as other electrical machines and apparatus, having individual functions, not specified or included elsewhere in this chapter?

LAW AND ANALYSIS:

The entries of the airbag sensors were liquidated under subheading 8536.50.00, HTSUS, as other switches based on NY 840600. NY 840600 determined that the protestant's electro-mechanical crash sensors were inertia switches classifiable under subheading 8536.50.00, HTSUS. However, the electro-mechanical crash sensors which were the subject of NY 840600 appear to consist solely of the sensor within the metal housing. The sensors described in NY 840600 do not appear to have an attached metal bracket and wire harness, as do the airbag sensors at issue. We are of the opinion, that the merchandise in NY 840600 is
not similar to the airbag sensors at issue. Therefore, we do not believe that NY 840600 is controlling for this merchandise.

The classification of merchandise under the HTSUS is governed by the General Rules of Interpretation (GRI's). GRI 1, HTSUS, states, in part, that "for legal purposes, classification shall be determined according to terms of the headings and any relative section or chapter notes...."

Additionally, we are of the opinion that the airbag sensors are not classifiable under subheading 8536.50.00, HTSUS, as other switches. In understanding the language of the HTSUS, the Harmonized Commodity Description and Coding System (HCDCS) Explanatory Notes (ENs) may be consulted. The ENs, although not dispositive, 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. 89-90, 54 Fed. Reg. 35127, 35128 (August 23, 1989). EN 85.36 (I) APPARATUS FOR SWITCHING ELECTRICAL CIRCUITS (pg. 1389), states that:

These apparatus consist essentially of devices for making or breaking one or more circuits in which they are connected, or for switching from one circuit to another; they may be known as single pole, double pole, triple pole, etc., according to the number of switch circuits incorporated....

(A) The switches of this heading include small switches for use in radio apparatus, electrical instruments, etc., switches of a kind used in domestic electrical wiring (e.g., tumbler switches, lever operated switches, rotary switches, pendant switches, push button switches) and switches for industrial application (such as limit switches, cam switches, microswitches and proximity switches)....

In Kyocera International, Inc., v. United States, 527 F. Supp. 337, affirmed 681 F.2d 796 (1982), the Court of International Trade (CIT) addressed the scope of item 685.90, Tariff Schedules of the United States (TSUS) (the predecessor provision to heading 8536, HTSUS.) This case involved the classification of a semiconductor package used in integrated circuits. The court stated in relation to item 685.90, TSUS, that a seemingly broad descriptive tariff term is not to be taken as encompassing every article which may literally come within that term but rather only those articles of the type intended by Congress. The court observed that neither integrated circuit packages nor any devices serving a similar function are mentioned as electrical devices included within item 685.90, TSUS, and concluded that "[p]lainly then, integrated circuit packaging was not intended by Congress to be encompassed by these mainly broad descriptions in item 685.90."

Congress has indicated that earlier tariff decisions must not be disregarded in applying the HTSUS. The conference report to the Omnibus Trade Bill of 1988, states that "on a case-by-case basis prior decisions should be considered instructive in interpreting the HTS[US], particularly where the nomenclature previously interpreted in those decisions remain unchanged and no dissimilar interpretation is required by the text of the HTS[US]." H. Rep. No. 100-576, 100th Cong., 2D Sess. 548, 550 (1988). This situation exists in the present case. Both item 685.90, TSUS, and heading 8536, HTSUS, provide for switches and other electrical apparatus for making or breaking electrical circuits. In addition, we find no language within the text or ENs which require a dissimilar interpretation. Thus, we find the interpretation rendered in Kyocera instructive in this instance.

The airbag sensor is designed to detect when a motor vehicle is involved in a collision of the type which warrants the deployment of the airbag. The airbag sensor does this by measuring the velocity change of the motor vehicle as it decelerates in a collision. If the velocity changes reaches a pre-determined value during the collision, the sensing mass automatically closes the electric circuit between the two gold-plated contacts. The current in the closed system then travels via the wire harness to the inflator. The airbag sensor does contain a switching mechanism, but it is merely one component of the airbag sensor. Although EN 85.36 describes the switching component of the airbag sensor, it does not describe articles similar to the airbag sensor which includes the ability to measure and read the velocity change of the motor vehicle. Therefore, we are of the opinion that the airbag sensors are not of the class or kind of article classifiable as other switches under subheading 8536.50.00, HTSUS.

The protestant contends that the airbag sensors are classifiable under subheading 9032.89.60, HTSUS, as other automatic regulating and controlling instruments and apparatus. Note 6, Chapter 90, HTSUS, states that heading 9032, HTSUS, applies only to:

(a) Instruments and apparatus for automatically controlling the flow, level, pressure or other variables of liquids or gases, or for automatically controlling temperature, whether or not their operation depends on an electrical phenomenon which varies according to the factor to be automatically controlled; and

(b) Automatic regulators of electrical quantities, and instruments or apparatus for automatically controlling non-electrical quantities the operation of which depends on an electrical phenomenon varying according to the factor to be controlled.

We are of the opinion that the airbag sensors are not of the class or kind of merchandise classifiable under subheading 9032.89.60, HTSUS, as other automatic regulating and controlling instruments and apparatus. The airbag sensors do not control variables of liquids or gases, automatically control temperature, automatically control non-electrical quantities nor are they automatic regulators of electrical quantities pursuant to Note 6, Chapter 90, HTSUS. The airbag sensors measure the velocity change of a motor vehicle as it decelerates in a collision and, then warranted, sends an electrical signal to deploy the airbag. Therefore, the airbag sensors are not classifiable under subheading 9032.89.60, HTSUS.

Heading 8708, HTSUS, provides for "Parts and accessories of the motor vehicles of headings 8701 to 8705...." EN 87.08 (pg. 1432) states that:

This heading covers parts and accessories of the motor vehicles of headings 87.01 or 87.05, provided the parts and accessories fulfil both the following conditions:

(i) They must be identifiable as being suitable for use solely or principally with the above-mentioned vehicles;
and (ii) They must not be excluded by the provisions of the Notes to Section XVII (see the corresponding General Explanatory Note).

General EN (III) PARTS AND ACCESSORIES (pgs. 1410-1412) states that:

It should, however, be noted that these headings apply only to those parts or accessories which comply with all three of the following conditions:

(i) They must not be excluded by the terms of Note 2 to this Section....
and (ii) They must be suitable for use solely or principally with the articles of Chapters 86 to 88....
and (iii) They must not be more specifically included elsewhere in the Nomenclature....

The airbag sensors are specifically designed for and are used on motor vehicles of headings 8701 to 8705, HTSUS. This is further evidenced by the metal bracket and wire harness which are specially designed for attachment to a motor vehicle. The brackets and wire harnesses may vary because a bracket and wire harness is designed for each model of motor vehicle. We are of the opinion that the airbag sensors are not excluded by Note 2, Section XVII, HTSUS. Note 2, Section XVII, HTSUS, states that:

The expressions "parts" and "parts and accessories" do not apply to the following articles, whether or not they are identifiable as for the goods of this Section...

(f) Electrical machinery or equipment (Chapter 85);

(g) Articles of Chapter 90....

However, as previously stated the airbag sensors are not classifiable under subheading 8536.50.00, HTSUS, as other switches, or under subheading 9032.89.60, HTSUS, as other automatic regulating and controlling instruments and apparatus. Furthermore, we are of the opinion that the airbag sensors are not articles covered more specifically by another heading in the Nomenclature.

The airbag sensors meet both requirements of EN 87.08 and all three requirements of General EN (III) PARTS AND ACCESSORIES to Section XVII, HTSUS. Therefore, the airbag sensors are classified as other parts and accessories of the motor vehicles of headings 8701 to 8705 under subheading 8708.99.50, HTSUS. See, Headquarters Ruling Letter (HRL) 088477 dated May 9, 1991, which classified an assembly of wires and various electrical devices for installation in the instrument panel of a passenger motor vehicle under subheading 8708.99.50, HTSUS, as other parts and accessories of the motor vehicles of headings 8701 to 8705.

HOLDING:

The airbag senors which are the subject of entries M29-0024080-7, M29-0024161-5, M29-0024387-6, M29-0024388-4, M29-0024428-8, M29-0024432-0, and M29-0024505-3 are classified under subheading 8708.99.50, HTSUS, as other parts and accessories of the motor vehicles of headings 8701 to 8705. This portion of the protest should be granted.

Pursuant to the protestant's request, the protest with regards to the remaining entries, those which do not contain the airbag sensors, should be denied.

The protest should be GRANTED IN PART and DENIED IN PART as described above. In accordance with Section 3A(11)(b) of Customs Directive 099 3550-065, dated August 4, 1993, Subject: Revised Protest Directive, this decision should be mailed by your office 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 the decision. Sixty days from the date of the decision the Office of Regulations and Rulings will take steps to make the decision available to customs personnel via the Customs Rulings Module in ACS and the public via the Diskette Subscription Service, Freedom of Information Act and other public access channels.

Sincerely,

John Durant, Director
Commercial Rulings Division

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