HQ 0087600 - Protests for further review 0901-9-701040 and 0901-9-701113; photodetectors; laser diodes; Subheading 9027.50.40; United States v. Corning Glass; check; Subheading 8541.40.20; Subheading 8543.80.90; Explanatory Note 85.43; Section XVI, note 1(m); Chapter 90, Additional U.S. Note 2; Explanatory Note 85.41(B). - United States International Trade Commision Rulings

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HQ 087600

December 13, 1990

CLA-2 CO:R:C:G 087600 AJS

CATEGORY: CLASSIFICATION

TARIFF NO.: 9027.50.40

District Director
U.S. Customs Service
Port of Buffalo
111 West Huron Street
Buffalo, NY 14202

RE: Protests for further review 0901-9-701040 and 0901-9-701113; photodetectors; laser diodes; Subheading 9027.50.40; United States v. Corning Glass; check; Subheading 8541.40.20; Subheading 8543.80.90; Explanatory Note 85.43; Section XVI, note 1(m); Chapter 90, Additional U.S. Note 2; Explanatory Note 85.41(B).

Dear District Director:

Protest No. 0901-9-701040 dated 06/05/89, was filed against the liquidations on 03/10/89, 04/07/89 and 03/24/89 regarding photodetectors. Protest No. 0901-9-701113 dated 06/20/89, was filed against the liquidations on 03/24/89, 04/07/89 and 04/14/89 regarding laser diodes.

No specific information is provided for the laser diodes in question. However, the port of Buffalo agrees that the laser diodes satisfy the description of a light emitting diode within the meaning of Explanatory Note (EN) 85.41. Therefore, the laser diode is properly classifiable within subheading 8541.40.20, HTSUSA.

FACTS:

The articles under protest are the PD and AD series photodetectors. They are free standing devices which couple high speed photodiodes to microwave amplifiers. They are powered from either a line operated or portable rechargeable battery operated power supply.

The photodectors are designed for detecting optical pulses or modulated optical signals. They employ photodiodes for the
detection of visible and infrared light, which is converted into electrical signals. These signals are amplified and then analyzed by other instruments such as oscilloscopes or frequency analyzers. The photodectors are used in a variety of applications such as in the communications field to detect modulations of light, and the pulses of light from a laser. They are also used in many experimental applications for detecting light.

ISSUE:

Whether the photodetectors in question are properly classifiable within subheading 9027.50.40, Harmonized Tariff Schedule of the United States Annotated (HTSUSA), which provides for "[o]ther instruments and apparatus using optical radiation (ultraviolet, visible, infrared): [e]lectrical."; or classifiable within 8543.80.90, HTSUSA, which provides for "[e]lectrical machines and apparatus, having individual functions, not specified or included elsewhere in this chapter; parts thereof: [o]ther."

LAW AND ANALYSIS:

Heading 9027, HTSUSA, provides for instruments and apparatus for measuring or checking quantities of light. The photo- detectors at issue detect, convert and amplify modulations and pulses of light in a variety of applications. They are primarily used in the process of checking pulses and modulations of light generated by lasers and communications systems.

The term "check" has been defined as to "inspect and ascertain the condition of esp. to determine that the condition is satisfactory: * * * investigate and ensure accuracy, authenticity, reliability, safety or satisfactory performance of * * * : to investigate and make sure about conditions or circumstances * * *." United States v. Corning Glass Works, 66 CCPA 25, 27, 586 F.2d 822, 825 (1978), quoting Webster's Third New International Dictionary, 381 (1971). The Court further stated the term "checking instruments" encompasses machines that carry out steps in a process for checking whether a quantity conforms to an imperfection-free standard. The photodectors carry out steps in the process of checking optical pulses and signals for operational efficiency and performance. Accordingly, the photodetectors satisfy the description of an instrument and apparatus for checking quantities of light.

Subheading 9027.50.40, HTSUSA, provides for other electrical instruments and apparatus using optical radiations (ultraviolet, visible and infrared). The photodectors satisfy the terms of this subheading. They detect visible and near
infrared light which is converted into electrical signals, that are also amplified. In addition, the photodectors are also an electrical instrument or apparatus for the purposes of this subheading. The term "electrical" in this instance refers to those articles the operation of which depends on an electrical phenomenon which varies according to the factor to be ascertained. Chapter 90, Additional U.S. Note 2. The photo- diode component of the photodetectors satisfies this requirement. Photodiodes are characterized by a variation in resistivity when struck by light. EN 85.41(B). Therefore, the photodectors satisfy the terms of this subheading and are classifiable therein.

The protestant argues for classification of the photodectors within subheading 8543.80.90, HTSUSA, which provides for other electrical machines and apparatus having an individual function, not specified or included elsewhere in this chapter. The Explanatory Notes state that heading 8543, HTSUSA, covers all electrical appliances and apparatus which are not covered more specifically by a heading of any other Chapter of the Nomenclature, nor excluded by the operation of a Legal Note to Section XVI. As stated previously, the photodectors are covered more specifically by another heading of the Nomenclature. In addition, the legal notes to Section XVI exclude articles of chapter 90 from classification within chapter 85. Section XVI, note 1(m). The photodectors are also an article of chapter 90. Accordingly, the photodetectors are excluded from classification within subheading 8543.80.90, HTSUSA.

HOLDING:

The photodectors at issue are properly classifiable within subheading 9027.50.40, HTSUSA, which provides for "[o]ther instruments and apparatus using optical radiations (ultraviolet, visible, infrared): [e]lectrical." The protest should be denied and a copy of this letter should be attached to the Customs Form 19 and forwarded to the protestant.

Sincerely,

John Durant, Director
Commercial Rulings Division

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