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