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HQ 955114



October 19, 1993

CLA-2 CO:R:C:M 955114 DWS

CATEGORY: CLASSIFICATION

TARIFF NO.: 9013.80.60

Ms. Sherry Poplarchik
UPS Customhouse Brokerage
6200 Lockheed Avenue
Anchorage, AK 99502

RE: Laser Diode Modules; Chapter 90, Additional U.S. Note 3; Optical Instrument; HQ 088628; Section XVI, Note 1(m); 8541.10.00

Dear Ms. Poplarchik:

This is in response to your letter of July 26, 1993, on behalf of Optima Precision Inc., to the Regional Commissioner of Customs, New York, concerning the classification of laser diode modules under the Harmonized Tariff Schedule of the United States (HTSUS). Your letter was referred to this office for a response.

FACTS:

The merchandise consists of laser diode modules [model nos. TOLD9200(s), TOLD9201(s), TOLD9211(s), TOLD9211M, TOLD9215(s), TOLD9140(s), TOLD9220(s), and TOLD9410(s)]. The module is comprised of a laser diode and an optical focusing lens in a housing. The module is used to provide a laser light source in different applications, including laser beam printers and typesetting equipment, audio visual pointers, bar code readers, construction leveling instruments, alignment and distance measuring systems, surveying equipment, particle counting instruments, and smoke detectors. The module emits laser light at wavelengths visible to the human eye.

The subheadings under consideration are as follows:

8541.10.00: [d]iodes, other than photosensitive or light- emitting diodes.

Goods classifiable under this provision receive duty-free treatment.

9013.80.60: . . . other optical appliances and instruments, not specified or included elsewhere in this chapter . . . : [o]ther devices, appliances and instruments: [o]ther.

The general, column one rate of duty for goods classifiable under this provision is 9 percent ad valorem.

ISSUE:

Whether the laser diode modules are classifiable under subheading 8541.10.00, HTSUS, as diodes, or under subheading 9013.80.60, HTSUS, as other optical instruments.

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.

Chapter 90, additional U.S. note 3, HTSUS, states that:

[f]or the purposes of this chapter, the terms "optical appliances" and "optical instruments" refer only to those appliances and instruments which incorporate one or more optical elements, but do not include any appliances or instruments in which the incorporated optical element or elements are solely for viewing a scale or for some other subsidiary purpose.

It is our understanding from the literature provided by the importer that the focusing lens is essential to the proper functioning of the subject laser diode module as a state of the art product. In fact, in the laser module's application as a light pen, the accompanying literature states that "focusing a laser diode is perhaps the most critical prerequisite in any laser diode application." Consequently, we find that the laser diode module satisfies the definition of an "optical instrument" under chapter 90, additional U.S. note 3, HTSUS, and the merchandise is classifiable under subheading 9013.80.60, HTSUS.

In HQ 088628, dated August 20, 1991, a laser diode module possessing a discrete parabolic rod lens was held to be classifiable under subheading 8541.40.95, HTSUS, as a photosensitive semiconductor device. However, in that ruling, it was held that, because the module could function without the lens, the role of the lens was subsidiary and the module was not an optical instrument.

It is our position that the subject laser diode module is distinguishable from the one in HQ 088628, because the function of the subject focusing lens is not subsidiary to the function of the laser diode contained within the module.

Section XVI, note 1(m), HTSUS, states that:

[t]his section does not cover:

(m) Articles of chapter 90.

Because the laser diode module is classifiable under heading 9013, HTSUS, under section XVI, note 1(m), HTSUS, it is precluded from classification under heading 8541, HTSUS.

HOLDING:

The subject laser diode modules are classifiable under subheading 9013.80.60, HTSUS, as other optical instruments.

Sincerely,

John Durant, Director

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