CLA-2 CO:R:C:M 088628 AJS
District Director
U.S. Customs Service
Port of San Francisco
555 Battery Street
P.O. Box 2450
San Francisco, CA 94126
RE: Protest number 2809-9-001002; laser diode module; photodiode;
Subheading 8541.40.95; Subheading 8541.40.20; Subheading
8541.40.60; GRI 6; Subheading 8541.40; Heading 9013; Heading
8517; EN 85.41(B)(2); EN 85.41(C); Chapter 90, Additional U.S.
Note 3; subsidiary purpose; Heading 8517.81.00; EN 85.17; GRI
3(a).
Dear District Director;
Protest for further review number 2809-9-001002 dated
5/15/89, was filed against the classification of laser diode
modules within subheading 8517.81.00, Harmonized Tariff Schedule
of the United States Annotated (HTSUSA).
FACTS:
The article under protest is a laser diode module (LDM). It
consists of a discrete gallium arsenide or indium phosphide laser
diode component, a discrete parabolic rod or similar lens, a
photodiode for optical monitoring, and in some cases a fiber
pigtail allowing coupling to a fiber optic cable. The device is
specially packaged and, in the fiber pigtail model, primarily
utilizes a dual in-line (dip) pin configuration. Otherwise, it
comes in a receptacle model.
The subject article is used in fiber optic communications
systems to convert electronic signals into laser light. The lens
component of the LDM is used to focus the laser light emitted by
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the diode and couple it with a fiber optic cable. It is claimed
that the LDM can operate without this lens component. In that
case, the laser diode component is placed closer to the fiber
cable so that the beam does not dissipate prior to entering the
cable.
The photodiode component is positioned behind the laser
diode component and operates as a sensing device to determine if
the laser diode is emitting light properly.
ISSUE:
Whether the subject LDM is properly classifiable within
heading 8541, HTSUSA, which provides for photosensitive
semiconductor devices and light-emitting diodes; or classifiable
within heading 9013, HTSUSA, which provides for other optical
appliances and instruments not specified or included elsewhere in
this chapter; or classifiable within heading 8517, HTSUSA, which
provides for electrical apparatus for line telephony and line
telegraphy.
LAW AND ANALYSIS:
Classification of merchandise under the HTSUSA is governed
by the General Rules of Interpretation (GRI's). GRI 1 provides
that classification is determined first in accordance with the
terms of the headings of the tariff and any relative section or
chapter notes, and provided such headings or notes do not
otherwise require, according to the other GRIs.
Heading 8541, HTSUSA, provides for "photosensitive
semiconductor devices, including photovoltaic cells whether or
not assembled in modules or made up into panels; light-emitting
diodes . . ." Photovoltaic cells are photosensitive semi-
conductor devices which convert light directly into electrical
energy without the need for an external source of current.
Harmonized Commodity Description and Coding System Explanatory
Notes (ENs), 85.41(B)(2), 1398 (1990). These cells are used for
detecting light impulses and in communication systems using fiber
optics. EN 85.41(B)(2). Photodiodes are described as a type of
photovoltaic cell. EN 85.41(B)(2)(ii). Furthermore, photodiodes
may also be combined with electroluminescent diodes. EN
85.41(B)(iii). The subject LDM consist of a photodiode combined
with a type of electroluminescent diode (i.e., laser diode). The
photodiode is used to detect light emitted by the laser diode,
which is itself used to convert electrical signals into laser
light for transmission in a fiber optics communications system.
Accordingly, the subject LDM satisfies the terms of heading 8541,
HTSUSA.
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For legal purposes, the classification of goods in the
subheadings of a heading shall be determined according to the
terms of those subheadings. GRI 6. Subheading 8541.40, HTSUSA,
provides for photosensitive semiconductor devices and light-
emitting diodes. As stated previously, the subject LDM satisfies
this description. Accordingly, the LDM is properly classifiable
within subheading 8541.40, HTSUSA.
Subheading 8541.40.20, HTSUSA, provides for light-emitting
diodes. Laser diodes are described as a type of light-emitting
diode. EN 85.41(C), 1399. Laser diodes emit a coherent light
beam and are used, e.g. in detecting nuclear particles, in
altimetering or in telemetering equipment, in communications
systems using fiber optics. EN 85.41(C). The subject LDM
consists of a laser diode component which satisfies this
description. However, the LDM also consists of a photodiode
which does not satisfy this description. Accordingly, the LDM
does not satisfy the terms of this subheading and cannot be
classified as a laser diode within the above subheading by the
application of GRI 6.
Subheading 8541.40.60, HTSUSA, provides for other diodes.
The subject LDM does not satisfy the terms of this subheading.
As stated previously, it contains a light-emitting diode
component which satisfies the terms of another subheading.
Therefore, the LDM is also not properly classifiable within
subheading 8541.40.60, HTSUSA, by the application of GRI 6.
Subheading 8541.40.95, HTSUSA, provides for other
photosensitive semiconductor devices. The subject LDM satisfies
this description. As stated previously, it consists of a
combined photodiode and laser diode which are devices described
within subheading 8541.40. Subheading 8541.40.95, HTSUSA, covers
photosensitive semiconductor devices which are not specifically
provided for in any of the other subheadings of subheading
8541.40, HTSUSA. As discussed above, the LDM does not satisfy
the description of any devices in the other relevant subheadings
of subheading 8541.40, HTSUSA. Accordingly, The subject LDM is
properly classifiable within subheading 8541.40.95, HTSUSA.
Heading 9013, HTSUSA, provides for other optical appliances
and instruments, not specified or included elsewhere in this
chapter. It is argued that the subject LDM satisfies this
description. For the purposes of chapter 90, the terms "optical
appliances" and "optical instruments" refer only to those
appliances and instruments which incorporate one or more optical
elements (e.g., lens), but do not include any appliances or
instruments in which the incorporated optical element are for a
subsidiary purpose. Chapter 90, Additional U.S. Note 3. The
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subject lens is used for a subsidiary purpose. The term
"subsidiary" is described as "[s]erving to supplement or assist .
. . [s]econdary in importance: subordinate." Webster's II New
Riverside University Dictionary, 1155 (1984). The subject LDM
consists of a lens which is used to focus a beam and to couple it
with a fiber optic cable. It is also stated that LDMs can be
used without these lenses. This type of lens certainly serves to
assist the operation of the laser diode and is secondary in
importance to the diode. Therefore, the LDM cannot be considered
an optical appliance or instrument within the meaning of Chapter
90. Accordingly, the subject LDM does not satisfy the terms of
heading 9013, HTSUSA.
Heading 8517, HTSUSA, provides for "[e]lectrical apparatus
for line telephony or line telegraphy . . ." This term
encompasses "apparatus for the transmission between two points of
speech or other sounds (or symbols representing written messages,
images or other data), by variation of an electric current or of
an optical wave flowing in a metallic or dielectric (copper,
optical fibres, combination cable, etc.) circuit connecting the
transmitting station to the receiving station." EN 85.17, 1360.
While the subject LDM is involved in the transmission of data, it
performs functions specifically provided for within heading 8541,
HTSUSA. When goods are, prima facie, classifiable under two
headings, the heading which provides the most specific
description shall be preferred to a heading providing a more
general description. GRI 3(a). Heading 8541, HTSUSA, provides
the most specific description of the subject LDM, while heading
8517, HTSUSA, provides a more general description. Thus, the LDM
is excluded from classification within heading 8517 by the
application of GRI 3(a).
This conclusion regarding specificity is also supported by
the Explanatory Notes to heading 85.41. They state that both
photovoltaic cells and laser diodes are used in fiber optic
communication systems. 85.41 EN (B)(2) and (C). Thus, it is
clear that the drafters of the Harmonized System intended for
some fiber optic communications devices to be classified in
heading 85.41. While the Explanatory Notes are not dispositive,
they provide a commentary on the scope of each heading and offer
guidance for the interpretation of the HTSUSA. H. Conf. Rep. No.
576, 100th Cong., 2d Sess., 549, reprinted in 1988 U.S. CODE
CONG. & ADMIN. NEWS 1582. We find the above notes instructive
for determining that the subject LDM, while used in fiber optic
communications systems, is more specifically described within
heading 85.41.
HOLDING:
The subject laser diode module is properly classifiable
within subheading 8541.40.95, HTSUSA, which provides for other
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photosensitive semiconductor devices dutiable at the rate of 4.2
percent ad valorem. You should deny the protest, except to the
extent reclassification of the merchandise as indicated above
results in a partial allowance. A copy of this decision should
be attached to the Customs Form 19 Notice of Action and forwarded
to the protestant.
Sincerely,
John Durant, Director
Commercial Rulings Division