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HQ 951710

February 1, 1993

CLA-2 CO:R:C:M 951710 DWS

CATEGORY: CLASSIFICATION

TARIFF NO.: 8537.10.00

Mr. Joseph A. Black
Sandler, Travis & Rosenberg, P.A.
The Waterford
5200 Blue Lagoon Drive
Miami, FL 33126-2022

RE: Reconsideration and Modification of HQ 951513; Diode Units; Telephonic Switching Equipment; HQ 084660; Explanatory Note 85.41; Chapter 85, Note 5; Explanatory Note 85.36; Explanatory Note 85.37; 8536.30.00; 8541.10.00

Dear Mr. Black:

This is in response to your letters of April 22, 1992, and October 6, 1992, requesting the reconsideration of HQ 951513, dated April 17, 1992, concerning the classification of diode units under the Harmonized Tariff Schedule of the United States (HTSUS).

FACTS:

The subject merchandise, model, no. BMF 630 005/11, is described as a diode unit. It is an assembly containing at least one filter for eliminating radio interference, a 315 A main fuse, a choke for reducing ripple, three parallel power diodes, a printed circuit board assembly (PCBA) for supervising the function of the unit, and three circuit breakers. Attached to the front of the unit are light emitting diodes (LED's) for indicating "On" status, "Diode Failure" status, "Fuse Failure" status, and "Control Circuit Fuse" status. The unit allows current of less than 1,000 volts (V) to pass in one direction from a DC power source to sensitive telephonic equipment. The unit prevents capacitors from discharging on momentary voltage decrease along the low-ohmic load. This enables the capacitors to maintain the voltage level across the transient-sensitive load.

ISSUE:

Whether the merchandise is classifiable as a diode under heading 8541, HTSUS, as electrical apparatus for protecting electrical circuits under heading 8536, HTSUS, or as a board for electric control or the distribution under 8537, HTSUS?

LAW AND ANALYSIS:

Classification of merchandise under the HTSUS is in accordance with the General Rules of Interpretation (GRI's), taken in order. GRI 1 provides that classification is determined according to the terms of the headings and any relative section or chapter notes.

In HQ 951513, the merchandise was held to be classifiable under subheading 8536.30.00, HTSUS, which provides for: "[e]lectrical apparatus for switching or protecting electrical circuits, or for making connections to or in electrical circuits, for a voltage not exceeding 1,000 V: [o]ther apparatus."

It is argued that the merchandise is properly classifiable under subheading 8541.10.00, HTSUS, which provides for: "[d]iodes, other than photosensitive or light-emitting diodes."

We do not agree that the subject unit is classifiable as a diode under subheading 8541.10.00, HTSUS. As was stated in HQ 951513, "[t]he product under consideration may contain diodes, but as a whole it is an assembly which also contains a filter for eliminating radio interference, a 315 A main fuse, a choke for reducing ripple, a printed circuit board assembly for supervising the function of the unit, and three circuit breakers." Because the unit incorporates so many more components than just diodes, it cannot be said that the unit is classifiable as a diode.

It is claimed that the components other than the diodes perform secondary functions, and Harmonized Commodity Description and Coding System Explanatory Note 85.41 (p. 1398) is cited to demonstrate that diodes contained within a housing are still classifiable under heading 8541, HTSUS.

In understanding the language of the HTSUS, the Explanatory Notes may be utilized. The Explanatory Notes, although not dispositive, are to be used to determine the proper interpretation of the HTSUS. 54 Fed. Reg. 35127, 35128 (August 23, 1989). In part, Explanatory Note 84.51 states that:

[t]he device described above fall in this heading whether presented mounted, that is to say with their terminals or leads or packaged (components), unmounted (elements) or even in the form of undiced discs (wafers). However, natural semiconductor materials (e.g., galena) are classified in this heading only when mounted.

It is our position that the subject unit is not described by Explanatory Note 84.51. This note merely states that diodes, whether mounted or unmounted, are classifiable under heading 8541, HTSUS. However, we find that the subject unit is not a diode unit for classification purposes.

HQ 084660, dated September 7, 1989, is cited in support of the classification of the unit under heading 8541, HTSUS. That ruling dealt with the classification of transistor modules consisting of two Darlington transistor chips and diode chips. The modules were held to be classifiable under heading 8541, HTSUS.

We do not find HQ 084660 relevant as to the classification of the subject unit. The transistor module and the subject unit are not in the least bit similar. In HQ 084660, the modules were created by interconnecting the transistor and diode chips by wire bonding to bus bars and external terminals. The internal parts were sealed with silicon rubber and epoxy resin, and the modules were enclosed within plastic covers. In fact, in distinguishing the modules from integrated circuits, it was stated that the modules were made up of "discrete indivisible components which can only perform a single function and not multiple circuits that perform multiple functions." The unit under consideration possesses several divisible components which perform multiple functions.

It is also claimed that due to chapter 85, note 5, HTSUS, the unit is precluded from classification under heading 8536, HTSUS. The note, in part states that:

[f]or the classification of the articles defined in this note, headings 8541 and 8542 shall take precedence over any other heading in the tariff schedule which might cover them by reference to, in particular, their function.

It is our position that chapter 85, note 5, HTSUS, is inapplicable because the merchandise is not a diode. Because the unit is not described under heading 8541, HTSUS, the note cannot apply.

We find that the unit is described under heading 8536, HTSUS. Explanatory Note 85.36 (p. 1390) provides that heading 8536, HTSUS, covers circuit protecting apparatus such as fuses and devices for breaking circuits. The subject unit incorporates fuses, circuit breakers, and other components that function as an assembly to protect circuits in telephonic apparatus.

The unit prevents capacitors from discharging on momentary voltage decrease along the low-ohmic load. This enables the capacitors to maintain the voltage level across the transient- sensitive load.

However, we do not find that the unit is classifiable under heading 8536, HTSUS, because it is an assembly of different components. In part, Explanatory Note 85.36 (p. 1390) states that:

[t]he heading also excludes:

(b) Assemblies (other than simple switching assemblies) of the apparatus mentioned above (heading 85.37).

Heading 8537, HTSUS, provides for: "[b]oards, panels (including numerical control panels), consoles, desks, cabinets and other bases, equipped with two or more apparatus of heading 8535 or 8536, for electric control or the distribution of electricity, including those incorporating instruments or apparatus of chapter 90, HTSUS, other than switching apparatus of heading 8517."

In part, Explanatory Note 85.37 (p. 1391) states that:

[t]hese consist of an assembly of apparatus of the kind referred to in the two preceding headings (e.g., switches and fuses) on a board, panel, console, etc., or mounted in a cabinet, desk, etc. . . .

Based upon Explanatory Note 85.37, it is our position that the subject unit is classifiable under subheading 8537.10.00, HTSUS, which provides for: "[b]oards, panels (including numerical control panels), consoles, desks, cabinets and other bases, equipped with two or more apparatus of heading 8535 or 8536, for electric control or the distribution of electricity, including those incorporating instruments or apparatus of chapter 90, HTSUS, other than switching apparatus of heading 8517: [f]or a voltage note exceeding 1,000 V."

HOLDING:

The diode unit is classifiable under subheading 8537.10.00, HTSUS. The general, column one rate of duty is 5.3 percent ad valorem.

EFFECT ON OTHER RULINGS

HQ 951513 is modified to reflect classification under subheading 8537.10.00, HTSUS.

Sincerely,

John Durant, Director

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