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HQ 960082




December 15, 1997

CLA-2 RR:CR:GC 960082 RFA

CATEGORY: CLASSIFICATION

TARIFF NO.: 9001.90.90

Port Director
U.S. Customs Service
605 W. Fourth Avenue
Anchorage, Alaska 99501

RE: Protest 3196-95-100218; Faraday Rotator Film for Optical Isolators; HQ 954255; NY A80542

Dear Port Director:

The following is our decision regarding Protest 3196-95-100218, which concerns the classification of Faraday Rotator Film under the Harmonized Tariff Schedule of the United States (HTSUS).

FACTS:

The subject merchandise are Faraday Rotator Films (models YTd3V and YT5V), measuring 2.0mm x 2.0mm, which are made from rare earth iron garnet (RIG) films grown on gadolinium gallium garnet (GGG) substrates. The wavelengths in which the Faraday Rotators operate are 1310 nanometers (nm) for Model YTd3V, and 1550 nm for Model YT5V). The limited information provided states that Faraday Rotators are used in optical isolators which are key components supporting the dependability of optical communications equipment, optical measuring instruments, CATV and other advanced optical products. The Faraday Rotator Films are used to rotate the plane of polarization of light to prevent light from reentering a laser.

The merchandise was entered under subheading 7104.10.00, HTSUS, as piezo electric quartz. The entry was liquidated as entered on June 2, 1995. The importer filed a timely protest on August 1, 1995, claiming that the merchandise is properly classified under subheading 8541.50.00, HTSUS, as other semiconductor devices.

The 1995 subheadings under consideration are as follows:

7104.10.00: Synthetic or reconstructed precious or semi-precious stones, whether or not worked or graded but not strung, mounted or set; ungraded synthetic or reconstructed precious or semi-precious stones, temporarily strung for convenience of transport:
[p]iezo-electric quartz. . . .

Goods classifiable under this provision have a general, column one rate of duty of 5.4 percent ad valorem.

8541.50.00 Diodes, transistors and similar semiconductor devices; photo-sensitive semiconductor devices, including photovoltaic cells whether or not assembled in modules or made up into panels; light-emitting diodes; mounted piezo-electric crystals. . . : [o]ther semi-conductor devices. . . .

Goods classifiable under this provision have a general, column one rate of duty of free.

9001.90.90 Optical fibers and optical fiber bundles; optical fiber cables other than those of heading 8544; sheets and plates of polarizing material; lenses (including contact lenses), prisms, mirrors and other optical elements, of any material, unmounted, other than such elements of glass not optically worked:
[o]ther: [o]ther: [o]ther . . . .

Goods classifiable under this provision have a general, column one rate of duty of 7.3 percent ad valorem.

ISSUE:

Whether the Faraday Rotator Films are classifiable as piezo- electric quartz, or as other semiconductor devices, or as other optical elements under the HTSUS?

LAW AND ANALYSIS:

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

The protestant claims that the subject merchandise is classifiable under heading 8541, HTSUS, as other semiconductor devices. To be classified under heading 8541, HTSUS, the merchandise must meet the terms of Legal Note 5 to Chapter 85, HTSUS. However, the protestant has submitted no evidence to support the classification claim under heading 8541, nor is there any other evidence of record from which we can independently determine the validity of that claim. Therefore, classification under heading 8541 is precluded. We also note that there is no information in the protest that supports a claim that the subject merchandise is piezo-electric quartz.

According to the limited information provided, the Faraday rotators are to be used in optical isolators. In HQ 954255, dated June 8, 1993, Customs stated that optical isolators are mounted in a laser semiconductor module in the light path between the laser chip and the transport medium (optical fibers). It operates to transmit a forward beam and shut off a backward beam in optical communication and measuring instruments. Based upon these facts, Customs held that optical isolators which contained a Faraday rotator, were classified under subheading 9013.80.60, HTSUS, as other optical instruments because the optical isolator met the definition of an "optical instrument" under Additional U.S. Note 3 to chapter 90. See also NY A80542, dated March 14, 1996. Additional U.S. Note 3 to chapter 90 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."

Based upon the definition in Additional U.S. Note 3 to chapter 90 and the holding in HQ 954255, we find that the Faraday Rotator Films which are used in optical isolators to rotate the plane of polarization of light to prevent light from reentering a laser, are classifiable as an optical element. Optical elements are provided for under heading 9001. The subject Faraday Rotator Films are classifiable under subheading 9001.90.90, HTSUS, as other optical elements.

HOLDING:

The Faraday Rotator Films are classifiable under subheading 9001.90.90, HTSUS, as other optical elements. Goods classifiable under this provision have a general, column one rate of duty of 7.3 percent ad valorem.

Because the rate of duty under the classification indicated above is more than the liquidated rate, you should DENY the protest in full. In accordance with Section 3A(11)(b) of Customs Directive 099 3550-065, dated August 4, 1993, Subject: Revised Protest Directive, this decision, together with the Customs Form 19, should be mailed by your office to the protestant no later than 60 days from the date of this letter. Any reliquidation of the entry in accordance with the decision must be accomplished prior to mailing of the decision. Sixty days from the date of the decision the Office of Regulations and Rulings will take steps to make the decision available to Customs personnel via the Customs Rulings Module in ACS and the public via the Diskette Subscription Service, Freedom of Information Act and other public access channels.

Sincerely,

John Durant, Director
Commercial Rulings Division

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