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HQ 961653

September 25, 1998

CLA-2 RR:CR:TE 961653 RH


TARIFF NO.: 5911.90.0080

Erik D. Smithweiss
Grunfeld, Desiderio, Lebowitz & Silverman LLP 245 Park Avenue
New York, NY 10167-3397

RE: Classification of a diaphragm; heading 8708; parts of motor vehicles;
Note 1(e) to Section XVI; Note 2(a) and (e) to Section XVII; heading 5911

Dear Mr. Smithweiss:

This is in reply to your letters of November 3, 1997, and September 16, 1998, on behalf of your client, ContiTech, a division of Continental General Tire, Inc., requesting a ruling on the classification of a diaphragm used in fuel pressure regulators for automobiles. A member of my staff met with you on August 26, 1998, to discuss the issues in this case.

You submitted three samples of the merchandise to aid us in our determination.


The description of the merchandise in your November 3, 1997, letter reads as follows:

The merchandise at issue is a diaphragm used in fuel pressure regulators for automobiles. The diaphragm regulates the pressure of fuel passing through the fuel pressure regulator. The diaphragm is manufactured from linen woven fabric that is spread coated on both sides with NBR rubber. The weight of the fabric after coating is 200 g/mý. The rubber is not cellular. The fabric will then be molded under pressure and temperature into a convoluted shape, and die cut to size. By weight, the product is 18% polyamide fabric, and 82% nitrile rubber. By value, the product is 61% fabric and 39% rubber.

You seek classification of the diaphragm under subheading 8708.99.8080 of the Harmonized Tariff Schedule of the United States Annotated (HTSUSA), as an other part of a motor vehicle.


Is the diaphragm classifiable under heading 8708, HTSUS, as an other part of a motor vehicle?
If not, what is its correct classification?


Classification under the HTSUSA is made in accordance with the General Rules of Interpretation (GRIs). The systematic detail of the harmonized system is such that virtually all goods are classified by application of GRI 1, that is, according to the terms of the headings of the tariff schedule and any relative Section or Chapter Notes. In the event that the goods cannot be classified solely on the basis of GRI 1, and if the headings and legal notes do not otherwise require, the remaining GRIs may then be applied.

Additionally, the Explanatory Notes (EN) to the Harmonized Commodity Description and Coding System, which represent the official interpretation of the tariff at the international level, facilitate classification under the HTSUSA by offering guidance in understanding the scope of the headings and GRIs.

In this case, we agree with you that the diaphragm qualifies as an article of textile material for technical uses under heading 5911, HTSUS. You contend, however, that the diaphragm should be classified under heading 8708, HTSUS, which provides for "Parts and accessories of the motor vehicles of headings 8701 to 8705." You express two reasons for this classification. First, you claim that the diaphragm is incorporated into vehicles which will not function properly without the diaphragm. Secondly, you state that the diaphragm is not excluded from classification within that heading by any relevant section or chapter notes.

Note 2 to Section XVII, HTSUS, excludes various items from classification as parts and accessories of motor vehicles. It reads, in part:

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:

(a) Joints, washers or the like of any material (classified according to their constituent material or in heading 8484) or other articles of vulcanized rubber other than hard rubber (heading 4016);

You contend that joints, gaskets and washers are all used as seals to ensure tightness and prevent leakage, and that the diaphragm at issue functions to regulate pressure, a role not performed by any of the articles excluded in Note 2(a) to Section XVII. Furthermore, you claim that the diaphragms are not articles of vulcanized rubber, and thus are not excluded by Note 2(a), Section XVII, from classification in Chapter 87. We agree with you on this point.

Note 2(e) to Section XVII also excludes the following articles from classification within that section:

Machines or apparatus of headings 8401 to 8479, or parts thereof, articles of heading 8481 [classification of the fuel pressure regulator in which the diaphragm is used is under this heading] or 8482 or, provided they constitute integral parts of engines or motors, articles of heading 8483.

You state, and we agree, that the diaphragm is not an apparatus of heading 8401 to 8479, or a part thereof. Furthermore, you claim that, although the fuel pressure regulator into which the diaphragm is incorporated is classifiable in heading 8481, the diaphragm is not a "part" of the fuel pressure regulator. To support that position, you cite Note 1(e) to Section XVI, HTSUSA. It states, in part, that Section XVI does not cover "articles of textile material for technical uses (heading 5911)." Emphasis supplied.

You further argue that Note 2(e), Section XVII, excluding articles of heading 8481 from classification within that section, is not applicable to the diagphragm since it is an article of textile material for technical uses in heading 5911 and not a part of an article of heading 8481, based on Note 1(e) to Section XVI. In addition, you submit that because there is no exclusionary language in Section XVII for articles of textile material for technical uses, the diaphragm is classifiable within heading 8708, as a part of motor vehicles of headings 8701 to 8705.

We disagree with your interpretation of the legal notes. The criteria set forth in the General Explanatory Notes to Section XVII regarding parts and accessories provide the following:

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

Legal Note 1(e) to Section XVI clearly directs classification of the diaphragm to heading 5911. This is further evidenced by the EN to heading 5911 which reads, in part, that "[t]he heading includes, in particular, those textile articles which are excluded from other headings and directed to heading 59.11 by any specific provision of the Nomenclature (for example, Note 1(e) to Section XVI). Emphasis supplied.

Moreover, the diaphragm is a component of the fuel pressure regulator. If the fuel pressure regulator is excluded from classification as a "part"of an automobile, it logically follows that a mere component of the excluded article cannot itself qualify as such a part. Particularly when classification of that component is directed to a specific heading in the HTSUSA. Thus, the fact that there is no exclusionary language in section XVII for technical use articles of heading 5911, is inconsequential.

Based on the foregoing, we find that the diaphragm is classifiable under heading 5911, HTSUS, under the principles of GRI 1.


The fuel pressure regulator is classifiable under subheading 5911.90.0080, HTSUSA, which provides for "Textile products and articles, for technical uses, specified in note 7 to this chapter: Other: Other. It is dutiable at the general column one rate at 6 percent ad valorem.


John Durant, Director
Commercial Rulings Division

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