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