CLA-2 CO:R:C:M 955114 DWS
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:
(a) - (l) xxx
(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