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HQ 967093




March 25, 2005

CLA-2 RR:CR:GC 967093 RSD

CATEGORY: CLASSIFICATION

TARIFF NO. 8541.40.6050

Port Director
U.S. Customs and Border Protection
P.O. Box 2748
Mobile, AL 36652

RE: Protest 1901-04-100005; Infrared Detector Model PD-10-6-4 and Preamplifier Model VPDC–5H

Dear Port Director:

This is our decision on Protest 1901-04-100005 filed by the Protestant, Boston Electronics Corporation on December 23, 2003, against your decision on the classification of Infrared detectors and preamplifiers under the Harmonized Tariff Schedule of the United States (HTSUS).

FACTS:

The subject merchandise of this protest are infrared detectors (model numbers PD10.6-3 and PD 10.6-5) that are combined with a preamplifier (model number VPDC-5H). The infrared detector is a radiation detector, a device that produces an output signal, which depends on the amount of radiation hitting the active region of the detector. In general, infrared (IR) sensors can be classified as thermal or photon type of detectors. Photo type detectors such as photovoltaic or photoconductive sensors operate on the principles of direct electron-photon interaction. It is our understanding that the preamplifier and the infrared detector work together as a unit and should be considered one device.

The PD series detectors operate through the photodiffusion effect, which produces photovoltage in the semiconductor. The devices are optimized for 10.6 μm and are useful at all shorter wavelengths. The PD series detectors are exceptionally well suited for high frequency and hetrodyne detection of 10.μm radiation due to their very short response time.

The purpose of the detector is to provide an electrical signal proportional to an optical signal (laser radiation) falling on the detector’s active area. There are several possible uses, but in this particular instance, the detectors and the pre-amps are exported to Japan via California where they will be used to control lasers in large machines that drill tiny holes in printed circuit boards. It is our understanding that the device is similar to a solar cell in which sunshine causes voltage to be generated. In other words, the device works like a solar cell that converts light into electricity through the processes of a solid state semiconductor and is used to power machines such as calculators. However, in this instance, instead of responding to sunshine, the infrared detector responds to CO2 laser radiation. Protestant has informed our office via a telephone conversation that the device lets electric current flow in one direction and resists electric current in the reverse direction.

After their manufacture, the infrared detectors and preamplifiers are tested and sorted by sensitivity. In the product literature, the standard commercial grades are “-3” and “-5” levels. In this instance, the chemical elements in the semiconductor are mercury, cadmium and tellurium in the form of a crystalline chemical compound HgCdTe. There is a complicated structure to this crystal, and it is very tiny: 1X1 mm by about 0.01 mm thick and weighing much less than a microgram. Around the crystal is simply the packaging, which in this instance is a metal cylinder with the detector looking out one end face and an electrical connector on the other. There are two electrical connections (“leads”) on the preamplifier. The purpose of these leads is to bring the voltage out and to complete the circuit. A cable is also included with the device to make a physical connection. Your office liquidated the entries under protest in heading 9013, HTSUS, as other optical appliances and instruments.

ISSUE:

Is the merchandise classified as photosensitive semiconductor devices in Heading 8541, HTSUS, or as other optical appliances and instruments in heading 9013, HTSUS?

LAW AND ANALYSIS:

We first note that that the entry under protest was liquidated on December 19, 2003, and that the Protest was timely filed pursuant to 19 U.S.C. 1514(c)(4) and 19 CFR 174.12(e)(1) on December 23, 2003.

Classification under the Harmonized Tariff Schedule of the United States (HTSUS) is made in accordance with the General Rules of Interpretation (GRI’s). GRI 1 provides that the classification of goods shall be determined according to the terms of the headings of the tariff schedule and any relative section or chapter notes. In the event that the goods cannot be classified solely on the basis of GRI 1, and if the headings and legal notes do not otherwise require, the remaining GRIs may then be applied.

The HTSUS provisions under consideration are as follows:

8541 Diodes, transitors and similar semiconductor devices; photosensitive semiconductor devices, including photovoltaic cells whether or not assembled in modules or made up into panels; light-emitting diodes; mounted piezoelectric crystals; parts thereof;

8541.40 Photosensitive semiconductor devices, including photovoltaic cells whether or not assembled in modules cells whether or not assembled in modules or made up into panels; light-emitting diodes:

8541.40.60 Other diodes.

9013 Liquid crystal devices not constituting articles provided for more specifically in other headings; lasers, other than laser diodes; other optical appliances and instruments, not specified or included elsewhere in this chapter; parts and accessories thereof;

9013.80 Other devices, appliances and instruments:

9013.80.90 Other.

The Harmonized Commodity Description and Coding System Explanatory Notes (EN’s) constitute the official interpretation of the Harmonized System. While not legally binding on the contracting parties, and therefore not dispositive, the EN’s provide a commentary on the scope of each heading of the Harmonized System and are thus useful in ascertaining the classification of merchandise under the system. CBP believes the EN’s should always be consulted. See T.D. 8980, 54 Fed. Reg. 35127, 35128 (Aug. 23, 1989). EN 85.41 indicates that:

Diodes which are two-terminal devices with a single p n junction; they allow current to pass in one direction (forward) but offer a very high resistance in the other (reverse). They are used for detection, rectification, switching, etc.

With regard to photosensitive semiconductor devices, EN 85.41 states:

This group comprises photosensitive semiconductor 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.

Photoconductive cells (light dependent resistors), usually consisting of two electrodes between which is a semiconductor substance (cadmium sulphide, lead sulphide, etc.) whose electrical resistance varies with the intensity of illumination falling on the cell.

These cells are used in flame detectors, in exposure meters for automatic cameras, for counting moving objects, for automatic precision measuring devices, in automatic door opening systems, etc.

Photosensitive semiconductor devices fall in this heading whether presented mounted (i.e., with their terminals or leads), packaged or unmounted.

In HQ 951572, dated May 20, 1992, Customs and Border Protection (CBP) held that photosensitive semiconductor detectors for certain forward radar systems were classified in heading 8541, HTSUS, as photosensitive semiconductor devices. In NY 836028, dated February 7, 1989, CBP ruled that a single element photovoltaic detector was classified in subheading 8541.40.60, HTSUS, as diodes other than light emitting diodes or solar cells. In the same ruling, CBP also ruled that a multi-element photovoltaic detector solar cell was classified in subheading 8541.50.00, HTSUS, as other semiconductor devices. The descriptions of the merchandise that was ruled upon in HQ 951572 and NY 836028 appear to be similar to the product that is under consideration in this case. We have been advised that the product under consideration are not liquid crystal devices or optical appliances, and thus the product cannot to be classified in heading 9013, HTSUS. Consequently, based on the language of the ENs, we conclude that the basic holdings of HQ 951572 and NY 836028 that the infrared detectors and preamplifiers are classified in heading 8541, HTSUS, as photosensitive semiconductor devices should be applied in this case. In determining the proper subheading under heading 8541, HTSUS, in which to classify the infrared detectors, it is our understanding, based on the information supplied by the Protestant, that the device lets the converted electric current to flow in one direction, and resists electric current flow in the reverse direction. Thus, in accordance with the description of diodes that is provided in EN 85.41, we conclude the infrared detectors should be considered diodes and would be classified in subheading 8541.40.60, HTSUS, as other diodes.

HOLDING:

The merchandise under consideration is classified in subheading 8541.40.6050, HTSUSA as “Diodes, transistors and similar semiconductor devices; photosensitive semiconductor devices, including photovalic cells whether or not assembled in modules or made up into panels; light-emitting diodes; mounted piezoelectric crystals; parts thereof: photosensitive semiconductor devices, including photovoltaic cells whether or not assembled in modules or made up into panels; light-emitting diodes: other diodes: Other: Other

You are instructed to GRANT the protest in full. In accordance with the Protest/Petition Processing Handbook (CIS HB, June 2002, pp. 18 and 21), you are to mail this decision, together with the CBP Form 19, 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 make the decision available to CBP personnel, and to the public on the CBP Home Page on the World Wide Web at www.cbp.gov, by means of the Freedom of Information Act, and other methods of public distribution.

Sincerely,


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