CLA-2 CO:R:C:M 088341 AJS
Mr. W.J. Dolbeer
Manager Contracts
AVEX Electronics
4807 Bradford Drive
Huntsville, Alabama 35805
RE: Photosensor; Photointerrupter; Heading 8541; Explanatory Note
85.41; Subheading 8541.40.80; McGraw-Hill Encyclopedia of Science
and Technology; Heading 8536; Explanatory Note 85.36(I);
Subheading 8536.50.00; Kyocera International, Inc. v. United
States; H. Rep. No. 100-576; IEEE Standard Dictionary of
Electrical and Electronic Terms.
Dear Mr. Dolbeer:
This in response to your letter of September 11, 1990,
requesting a tariff classification ruling regarding a photo-
sensor.
FACTS:
The article at issue is a photosensor or photointerrupter.
The sensor is a solid state device consisting of a light emitting
diode (LED) and a photo darlington transistor (i.e., photo-
transistor) mounted in opposite arms of a U-shaped housing so
that the light emitted by the LED is directed at the receiving
surface of the phototransistor. The housing consists of two
pieces of molded black plastic glued together so that after
assembly, the housing, the LED and phototransistor become an
inseparable unit. There are no electrical connections between
the LED and the phototransistor within the unit.
Photosensors have a wide variety of uses. The most common
usage is as a sensor for shaft revolution or shaft speed. In
this example, the sensor operates by means of a slotted disc
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fastened to the shaft which interrupts the beam from the LED to
the phototransistor. In the use under consideration, the sensor
will inhibit the operation of a personal computer unless the beam
is interrupted by the insertion of a key.
ISSUE:
Whether the photosensor is properly classifiable within
heading 8541, Harmonized Tariff Schedule of the United States
Annotated (HTSUSA), which provides for photosensitive
semiconductor devices; or classifiable within heading 8536,
HTSUSA, which provides for electrical apparatus for switching
electrical circuits.
LAW AND ANALYSIS:
Heading 8541, HTSUSA, provides for photosensitive
semiconductor devices. These comprise 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. Explanatory Note
(EN) 85.41. The photosensor at issue satisfies this description.
It contains an LED which directs emitted rays at the receiving
surface of a phototransistor. One of the main types of
photosensitive semiconductor devices are photovoltaic cells. EN
85.41(B)(2). These include the special category of devices
referred to as photocouples and photorelays, which consist of
electroluminescent diodes combined with photodiodes, photo-
transistors or photothyristors. EN 85.41(B)(2)(iii).
The photosensor at issue consists of a LED and photo-
transistor combined together as one unit. An LED is described
with electroluminescent diodes as devices which convert electric
energy into visible, infra-red or ultra-violet rays. EN
85.41(C). A phototransistor is described as a type of photo-
electric receiver characterized by a variation in resistivity
when light rays strike its p n junction. EN 85.41(B)(2)(ii).
The phototransistor at issue operates by receiving rays from the
LED which create a variation in resistivity. When these rays are
interrupted, by a shaft or key in some cases, this variation in
resistivity ceases. Accordingly, the photosensor satisfies the
description of a photosensitive semiconductor device consisting
of an electroluminescent diode combined with a phototransistor.
Subheading 8541.40.80, HTSUSA, provides for optical coupled
isolators. These are described as very small four-terminal
electronic circuit elements that include in an integral package a
light emitter and light detector. McGraw-Hill Encyclopedia of
Science and Technology (MH) (6th ed.), vol. 12, p. 419 (1987).
The optical emitters most commonly used in an isolator are LEDs.
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MH at 419. As stated previously, the photosensor contains a LED.
A type of light detector used in isolators are light-sensitive
devices that modify a voltage or current such as photo-
transistors. MH at 419. As stated previously, the subject
photosensor contains a phototransistor. Furthermore, a LED-
silicon detector combination is cited as a type of optical
coupled isolator. MH at 419. A photo-darlington sensor is
cited as a type of light detector used in a LED-silicon detector.
MH at 420. Accordingly, the photosensor satisfies the
description of an optical coupled isolator.
In an optical isolator, the emitting and detecting devices
are so positioned that the majority of the emission from the
emitter is optically coupled to the light-sensitive area of the
detector. MH at 419. This configuration uses an electronic
input signal to cause an electronic output signal without any
electrical connection between the input (ie., LED) and the output
(i.e., phototransistor) terminals. The subject photosensor
satisfies this description. It is U-shaped so that the light
emitted by the LED is optically coupled to the light-sensitive
area of the phototransistor. When the rays emitted by the LED
are broken by a shaft or key, the isolator is no longer coupled
and does not produce an output signal. In addition, no
electrical connection exists between the LED and phototransistor
within the photosensor. Therefore, the subject photosensor also
satisfies the descriptions of how an optical coupled isolator
functions.
It is argued that only assemblies and panels of photovoltaic
cells are included within heading 8541, HTSUSA. The language of
EN 85.41(b)(2)(i), which deals only with solar cells, is cited as
support for this argument. This note states that this "heading
also covers solar cells, whether or not assembled in modules or
made up into panels. However, the heading does not cover modules
equipped with elements, however, simple, (for example, diodes to
control the direction of the current), which supply the power
directly to, for example, a motor, an electrolyser (heading
85.01)." We disagree with this argument for the following
reasons. First, the cited language relates only to solar cells
and not photocouples or photorelays. Therefore, this language is
not applicable to the classification of these devices. Second,
this argument contradicts the text of subheading 8541.40, HTSUSA,
which provides for "photovoltaic cells whether or not assembled
in modules or made up in panels" (emphasis added). This language
indicates that subheading 8541.40, HTSUSA, includes photovoltaic
cells, and these cells assembled in modules or made up in panels.
Thus, we cannot conclude that heading 8541, HTSUSA, is limited to
only assemblies and panels of photovioltaic cells.
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It is additionally argued that heading 8541, HTSUSA, does
not include modules made up of devices listed within this
heading. We also disagree with this argument. It is
contradicted by the text of subheading 8541.40, HTSUSA, which
states that the photosensitive semiconductor devices of this
subheading include "photovoltaic cells whether or not assembled
in modules". In addition, the ENs describes photocouples and
photorelays (i.e., types photovoltaic cell) as devices which
combine electroluminescent diodes and phototransistors (i.e.,
devices of heading 8541). The subject article satisfies this
description because it combines a LED and phototransistor in a
module. Therefore, we cannot conclude that heading 8541, HTSUSA,
does not include modules made up of the devices listed within
this heading.
Heading 8536, HTSUSA, provides for electrical apparatus for
switching or protecting electrical circuits, or for making
connections to or in electrical circuits (for example, switches,
relays etc.,). 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; they may
be known as single pole, double pole, triple pole, etc.,
according to the number of switch circuits incorporated. EN
85.36(I). This group also includes change-over switches and
relays. EN 85.36(I). The switches of this heading include small
switches for use in radio apparatus, electrical instruments.,
etc., switches of a kind used in domestic electrical wiring
(e.g., tumbler switches, lever operated switches, rotary
switches, pendant switches, push button switches) and switches
for industrial application (such as, limit switches, cam
switches, microswitches and proximity switches).
It is argued that the subject photosensor is properly
classifiable within subheading 8536.50.00, HTSUSA, as an "other
switch". While the subject photosensor may operate as a type of
"on" and "off" device, in that it can be used to inhibit the
operation of a personal computer unless the couple is broken
between the LED and phototransistor by a key, it is not a type
of device described within the terms nor ENs to heading 8536,
HTSUSA. Accordingly, it is Customs position that the subject
photosensor is not the type of device intended by Congress to be
included within this subheading.
The Court of International Trade (CIT) has addressed the
scope of the predecessor provision to heading 8536, HTSUSA (i.e,
item 685.90, Tariff Schedules of the United States (TSUS)).
Kyocera International, Inc., v. United States (Kyocera), 527 F.
Supp 337, aff'd 681 F.2d 796 (1982). This case involved the
classification of a semiconductor package used in integrated
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circuits. The CIT stated in relation to item 685.90, TSUS, that
a seemingly broad descriptive tariff term is not to be taken as
encompassing every article which may literally come within that
term but rather only those articles of the type intended by
Congress. Kyocera at 96. The CIT observed that neither
integrated circuit packages nor any devices serving a similar
function are mentioned as electrical devices included within
685.90, TSUS. Kyocera at 97. The CIT concluded that "[p]lainly
then, integrated circuit packaging was not intended by Congress
to be encompassed by the seemingly broad descriptions in item
685.90." Kyocera at 98. In this instance, neither photosensors
nor any devices serving a similar function are mentioned in the
text or ENs of heading 8536, HTSUSA. However, photosensors
satisfy the description of optical coupled isolators which are
specifically enumerated within heading 8541, HTSUSA. Therefore,
the rationale of Kyocera supports the conclusion that photo-
sensors also are not the type of device intended by Congress to
be encompassed by the seemingly broad descriptions within heading
8536, HTSUSA.
Congress has indicated that earlier tariff decisions must
not be disregarded in applying the HTSUSA. The conference report
to the Omnibus Trade Bill of 1988, states that "on a case-by-case
basis prior decisions should be considered instructive in
interpreting the HTS[USA], particularly where the nomenclature
previously interpreted in those decisions remain unchanged and no
dissimilar interpretation is required by the text of the
HTS[USA]." H. Rep. No. 100-576, 100th Cong., 2D Sess. 548, 550
(1988). This situation exists in the present case. Both item
685.90, TSUS, and subheading 8536, HTSUSA, provide for switches
and other electrical apparatus for making or breaking electrical
circuits. In addition, we find no language within the text or
ENs to the HTSUSA which require a dissimilar interpretation.
Thus, we find the interpretation rendered in Kyocera instructive
in this instance.
In relation to item 685.90, TSUS, the Court additionally
stated that "[t]he field of electronics is, of course, a
technical one, and it is well settled that in instances where the
common meaning of a technical term is in issue, as here, reliance
should not be confined to general lexicons, but technical
dictionaries may be consulted. Kyocera at 94. A switch is
described as:
(1) (electrical systems). A device for opening and closing
or for changing the connection of a circuit.
(2) (computing system). A device or programming technique
for making a selection, for example, a toggle, a
conditional jump.
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(3) (electric and electronic parts and equipment). A device
for making, breaking, or changing the connections in an
electric circuit. A switch may be operated by manual,
mechanical, hydraulic, thermal, barometric or
gravitational means, or by electromechanical means not
following within the definition of "relay".
(4) (transmission and distribution). A device for opening
and closing or for changing the connection of a circuit.
IEEE Standard Dictionary of Electrical and Electronic Terms,
second ed., p. 694 (1977). The subject photosensor does not
satisfy these technical descriptions of switches. Instead, the
photosensor satisfies both the technical and HTSUSA descriptions
of a photosensitive semiconductor device, and more specifically
an optical coupled isolator.
HOLDING:
The photosensor at issue is properly classifiable within
subheading 8541.40.80, HTSUSA, which provides for optical
coupled isolators, currently dutiable at the rate of 4.2 percent
ad valorem.
Sincerely,
John Durant, Director
Commercial Rulings Division