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HQ 088341


February 26, 1991

CLA-2 CO:R:C:M 088341 AJS

CATEGORY: CLASSIFICATION

TARIFF NO.: 8541.40.80

Mr. W.J. Dolbeer
Manager Contracts
AVEX Electronics
4807 Bradford Drive
Huntsville, Alabama 35805

RE: Photosensor; Photointerrupter; Heading 8541; Explanatory Note 85.41; Subheading 8541.40.80; McGraw-Hill Encyclopedia of Science and Technology; Heading 8536; Explanatory Note 85.36(I); Subheading 8536.50.00; Kyocera International, Inc. v. United States; H. Rep. No. 100-576; IEEE Standard Dictionary of Electrical and Electronic Terms.

Dear Mr. Dolbeer:

This in response to your letter of September 11, 1990, requesting a tariff classification ruling regarding a photo- sensor.

FACTS:

The article at issue is a photosensor or photointerrupter. The sensor is a solid state device consisting of a light emitting diode (LED) and a photo darlington transistor (i.e., photo- transistor) mounted in opposite arms of a U-shaped housing so that the light emitted by the LED is directed at the receiving surface of the phototransistor. The housing consists of two pieces of molded black plastic glued together so that after assembly, the housing, the LED and phototransistor become an inseparable unit. There are no electrical connections between the LED and the phototransistor within the unit.

Photosensors have a wide variety of uses. The most common usage is as a sensor for shaft revolution or shaft speed. In this example, the sensor operates by means of a slotted disc
fastened to the shaft which interrupts the beam from the LED to the phototransistor. In the use under consideration, the sensor will inhibit the operation of a personal computer unless the beam is interrupted by the insertion of a key.

ISSUE:

Whether the photosensor is properly classifiable within heading 8541, Harmonized Tariff Schedule of the United States Annotated (HTSUSA), which provides for photosensitive semiconductor devices; or classifiable within heading 8536, HTSUSA, which provides for electrical apparatus for switching electrical circuits.

LAW AND ANALYSIS:

Heading 8541, HTSUSA, provides for photosensitive semiconductor devices. These comprise devices in which the action of visible rays, infra-red rays or ultra-violet rays causes variations in resistivity or generates an electromotive force, by the internal photoelectric effect. Explanatory Note (EN) 85.41. The photosensor at issue satisfies this description. It contains an LED which directs emitted rays at the receiving surface of a phototransistor. One of the main types of photosensitive semiconductor devices are photovoltaic cells. EN 85.41(B)(2). These include the special category of devices referred to as photocouples and photorelays, which consist of electroluminescent diodes combined with photodiodes, photo- transistors or photothyristors. EN 85.41(B)(2)(iii).

The photosensor at issue consists of a LED and photo- transistor combined together as one unit. An LED is described with electroluminescent diodes as devices which convert electric energy into visible, infra-red or ultra-violet rays. EN 85.41(C). A phototransistor is described as a type of photo- electric receiver characterized by a variation in resistivity when light rays strike its p n junction. EN 85.41(B)(2)(ii). The phototransistor at issue operates by receiving rays from the LED which create a variation in resistivity. When these rays are interrupted, by a shaft or key in some cases, this variation in resistivity ceases. Accordingly, the photosensor satisfies the description of a photosensitive semiconductor device consisting of an electroluminescent diode combined with a phototransistor.

Subheading 8541.40.80, HTSUSA, provides for optical coupled isolators. These are described as very small four-terminal electronic circuit elements that include in an integral package a light emitter and light detector. McGraw-Hill Encyclopedia of Science and Technology (MH) (6th ed.), vol. 12, p. 419 (1987). The optical emitters most commonly used in an isolator are LEDs.

MH at 419. As stated previously, the photosensor contains a LED. A type of light detector used in isolators are light-sensitive devices that modify a voltage or current such as photo- transistors. MH at 419. As stated previously, the subject photosensor contains a phototransistor. Furthermore, a LED- silicon detector combination is cited as a type of optical coupled isolator. MH at 419. A photo-darlington sensor is cited as a type of light detector used in a LED-silicon detector. MH at 420. Accordingly, the photosensor satisfies the description of an optical coupled isolator.

In an optical isolator, the emitting and detecting devices are so positioned that the majority of the emission from the emitter is optically coupled to the light-sensitive area of the detector. MH at 419. This configuration uses an electronic input signal to cause an electronic output signal without any electrical connection between the input (ie., LED) and the output (i.e., phototransistor) terminals. The subject photosensor satisfies this description. It is U-shaped so that the light emitted by the LED is optically coupled to the light-sensitive area of the phototransistor. When the rays emitted by the LED are broken by a shaft or key, the isolator is no longer coupled and does not produce an output signal. In addition, no electrical connection exists between the LED and phototransistor within the photosensor. Therefore, the subject photosensor also satisfies the descriptions of how an optical coupled isolator functions.

It is argued that only assemblies and panels of photovoltaic cells are included within heading 8541, HTSUSA. The language of EN 85.41(b)(2)(i), which deals only with solar cells, is cited as support for this argument. This note states that this "heading also covers solar cells, whether or not assembled in modules or made up into panels. However, the heading does not cover modules equipped with elements, however, simple, (for example, diodes to control the direction of the current), which supply the power directly to, for example, a motor, an electrolyser (heading 85.01)." We disagree with this argument for the following reasons. First, the cited language relates only to solar cells and not photocouples or photorelays. Therefore, this language is not applicable to the classification of these devices. Second, this argument contradicts the text of subheading 8541.40, HTSUSA, which provides for "photovoltaic cells whether or not assembled in modules or made up in panels" (emphasis added). This language indicates that subheading 8541.40, HTSUSA, includes photovoltaic cells, and these cells assembled in modules or made up in panels. Thus, we cannot conclude that heading 8541, HTSUSA, is limited to only assemblies and panels of photovioltaic cells.

It is additionally argued that heading 8541, HTSUSA, does not include modules made up of devices listed within this heading. We also disagree with this argument. It is contradicted by the text of subheading 8541.40, HTSUSA, which states that the photosensitive semiconductor devices of this subheading include "photovoltaic cells whether or not assembled in modules". In addition, the ENs describes photocouples and photorelays (i.e., types photovoltaic cell) as devices which combine electroluminescent diodes and phototransistors (i.e., devices of heading 8541). The subject article satisfies this description because it combines a LED and phototransistor in a module. Therefore, we cannot conclude that heading 8541, HTSUSA, does not include modules made up of the devices listed within this heading.

Heading 8536, HTSUSA, provides for electrical apparatus for switching or protecting electrical circuits, or for making connections to or in electrical circuits (for example, switches, relays etc.,). 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. EN 85.36(I). This group also includes change-over switches and relays. EN 85.36(I). 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).

It is argued that the subject photosensor is properly classifiable within subheading 8536.50.00, HTSUSA, as an "other switch". While the subject photosensor may operate as a type of "on" and "off" device, in that it can be used to inhibit the operation of a personal computer unless the couple is broken between the LED and phototransistor by a key, it is not a type of device described within the terms nor ENs to heading 8536, HTSUSA. Accordingly, it is Customs position that the subject photosensor is not the type of device intended by Congress to be included within this subheading.

The Court of International Trade (CIT) has addressed the scope of the predecessor provision to heading 8536, HTSUSA (i.e, item 685.90, Tariff Schedules of the United States (TSUS)). Kyocera International, Inc., v. United States (Kyocera), 527 F. Supp 337, aff'd 681 F.2d 796 (1982). This case involved the classification of a semiconductor package used in integrated
circuits. The CIT 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. Kyocera at 96. The CIT observed that neither integrated circuit packages nor any devices serving a similar function are mentioned as electrical devices included within 685.90, TSUS. Kyocera at 97. The CIT concluded that "[p]lainly then, integrated circuit packaging was not intended by Congress to be encompassed by the seemingly broad descriptions in item 685.90." Kyocera at 98. In this instance, neither photosensors nor any devices serving a similar function are mentioned in the text or ENs of heading 8536, HTSUSA. However, photosensors satisfy the description of optical coupled isolators which are specifically enumerated within heading 8541, HTSUSA. Therefore, the rationale of Kyocera supports the conclusion that photo- sensors also are not the type of device intended by Congress to be encompassed by the seemingly broad descriptions within heading 8536, HTSUSA.

Congress has indicated that earlier tariff decisions must not be disregarded in applying the HTSUSA. 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[USA], particularly where the nomenclature previously interpreted in those decisions remain unchanged and no dissimilar interpretation is required by the text of the HTS[USA]." 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 subheading 8536, HTSUSA, provide for switches and other electrical apparatus for making or breaking electrical circuits. In addition, we find no language within the text or ENs to the HTSUSA which require a dissimilar interpretation. Thus, we find the interpretation rendered in Kyocera instructive in this instance.

In relation to item 685.90, TSUS, the Court additionally stated that "[t]he field of electronics is, of course, a technical one, and it is well settled that in instances where the common meaning of a technical term is in issue, as here, reliance should not be confined to general lexicons, but technical dictionaries may be consulted. Kyocera at 94. A switch is described as:

(1) (electrical systems). A device for opening and closing or for changing the connection of a circuit.

(2) (computing system). A device or programming technique for making a selection, for example, a toggle, a conditional jump.

(3) (electric and electronic parts and equipment). A device for making, breaking, or changing the connections in an electric circuit. A switch may be operated by manual, mechanical, hydraulic, thermal, barometric or gravitational means, or by electromechanical means not following within the definition of "relay".

(4) (transmission and distribution). A device for opening and closing or for changing the connection of a circuit.

IEEE Standard Dictionary of Electrical and Electronic Terms, second ed., p. 694 (1977). The subject photosensor does not satisfy these technical descriptions of switches. Instead, the photosensor satisfies both the technical and HTSUSA descriptions of a photosensitive semiconductor device, and more specifically an optical coupled isolator.

HOLDING:

The photosensor at issue is properly classifiable within subheading 8541.40.80, HTSUSA, which provides for optical coupled isolators, currently dutiable at the rate of 4.2 percent ad valorem.

Sincerely,

John Durant, Director
Commercial Rulings Division

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