CLA-2 CO:R:C:M 953561 DWS
District Director
U.S. Customs Service
909 First Avenue, Room 2039
Seattle, WA 98174
RE: Protest No. 3001-93-100077; Opto Sensor; Explanatory Note
85.36(I); Explanatory Note 85.41(B); Chapter 85, Note 5;
8541.40.95
Dear District Director:
The following is our decision regarding the request for
further review of Protest No. 3001-93-100077 concerning your action
in classifying and assessing duty on opto sensors under the
Harmonized Tariff Schedule of the United States (HTSUS).
FACTS:
The merchandise consists of opto sensors, model no. 1990-
1142, for use in printing machines. The sensor, incorporating a
semiconductor, is comprised of a light emitting diode (LED) source
and phototransistor sensor which emits an infrared beam. When the
printing machine is out of paper, the infrared beam is interrupted,
breaking the electrical circuit and shutting down the printing
machine.
The merchandise was entered under subheading 8541.40.95,
HTSUS, as photosensitive semiconductor devices. However, the
entries were liquidated on October 30, 1992, under subheading
8536.50.00, HTSUS, as electrical switching apparatus. The protest
was timely filed by the protestant on January 28, 1993.
The subheadings under consideration are as follows:
8536.50.00: [e]lectrical apparatus for switching or protecting
electrical circuits, or for making connections to
or in electrical circuits (for example, switches,
relays, fuses, surge suppressors, plugs, sockets,
lamp-holders, junction boxes), for a voltage not
exceeding 1,000 V: [o]ther switches.
The general, column one rate of duty is 5.3 percent ad
valorem.
8541.40.95: [p]hotosensitive semiconductor devices, including
photovoltaic cells whether or not assembled in
modules or made up into panels; light-emitting
diodes: [o]ther: [o]ther.
The general, column one rate of duty is 4.2 percent ad
valorem.
ISSUE:
Whether the opto sensor is classifiable under 8536.50.00,
HTSUS, as electrical switching apparatus, or under subheading
8541.40.95, HTSUS, as a photosensitive semiconductor device?
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 understanding the language of the HTSUS, the Harmonized
Commodity Description and Coding System 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 85.36(I) (p. 1389) states:
(I) APPARATUS FOR SWITCHING ELECTRICAL CIRCUITS
These apparatus consist essentially of devices for making or
breaking one or more circuits in which they are connected, or
for switching from one circuit to another . . .
We find that, based upon the description under Explanatory
Note 85.36(I), the opto sensor is described under heading 8536,
HTSUS. When the paper tray is empty in a printing machine, the
sensor breaks an electrical circuit thereby shutting down the
machine.
In part, Explanatory Note 85.41(B) (p. 1398) states:
(B) PHOTOSENSITIVE SEMICONDUCTOR DEVICES
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.
Based upon the description under Explanatory Note 85.41(B),
it is our position that the subject opto sensor is not described
under heading 8541, HTSUS. The sensor is an electrical switching
apparatus. It does not cause a variation in resistivity or
generate an electromotive force.
It is claimed that chapter 85, note 5, HTSUS, is dispositive
as to the classification of the opto sensor under the HTSUS. It
states that:
[f]or the purposes of headings 8541 and 8542:
(a) "Diodes, transistors and similar semiconductor devices"
are semiconductor devices the operation of which depends
on variations in resistivity on the application of an
electric field . . .
For 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.
Chapter 85, note 5, HTSUS, has no effect upon the
classification of the merchandise, because the sensor is not
described under heading 8541, HTSUS.
Therefore, it is our position that the opto sensor is
classifiable under subheading 8536.50.00, HTSUS.
HOLDING:
For the foregoing reasons, we find that the opto sensor is
classifiable under subheading 8536.50.00, HTSUS, as an electrical
switching apparatus.
The protest should be denied in full. A copy of this decision
should be attached to the Customs Form 19 and provided to the
protestant as part of the notice of action on the protest.
Sincerely,
John Durant, Director
Commercial Rulings Division