CLA-2 CO:R:C:M 088754 MBR
District Director
U.S. Customs Service
300 South Ferry St. Terminal Is
San Pedro, CA 90731
RE: Protest Nos. 2704-90-004178 and 004583; Toshiba Laser Diode;
Light-Emitting Diode; LED; Photodiode; GRI 3.(b)
Dear Sir:
This is our response regarding Further Review of Protest
Nos. 2704-90-004178 and 004583, which pertain to the
classification of "Toshiba Laser Diodes," under the Harmonized
Tariff Schedule of the United States (HTSUS).
FACTS:
The merchandise at issue is the "Toshiba Laser Diode,"
combined with a photodiode. These "Laser Diodes" are designed to
produce a short visible 670 nanometer ("nm") wavelength coherent
light beam (for scanners, measuring equipment, and bar code
readers) and, alternatively, an invisible wavelength coherent
light beam of more than 780 nm, (for optical information
processing such as laser beam printers, fiber optic
communications, space communications, medical applications and
optical card memory).
The crystal material constituting the visible wavelength
laser diode consists of Indium, Gallium, Aluminum and Phosphorous
(InGaA1P). The crystal material constituting the invisible
wavelength laser diode generally consists of Gallium, Arsenide,
Aluminum and Phosphorous (GaAsA1P). These Laser Diodes emit a
stable, stimulated, and coherent light beam by virtue of emitted
light being concentrated and channeled through opposing, mirrored
reflecting surfaces. This electromagnetic field, in turn, is
confined at a high energy level to an active layer in a resonant
cavity between the P- and N- cladding layers of the crystal
material, thereby causing the rate of recombination of holes and
electrons to increase and to stimulate further emission and thus
much greater output power. A special oxidizing layer above the
P- cladding layer insulates the resonant cavity of the crystal to
ensure that the electrons are sustained at a high energy level.
A single wavelength of light is thereby generated at equal
intervals and durations, thus producing its coherent character.
Meanwhile, a photosensitive photodiode ("an integral part of the
module") monitors and adjusts the input current to attain stable,
constant output power.
ISSUE:
Whether the Toshiba Laser Diode combined with a Photodiode
is properly classifiable within subheading 8541.40.20, HTSUS,
which provides for "Light-emitting diodes," or within subheading
8541.40.60, HTSUS, which provides for "Other diodes"?
LAW AND ANALYSIS:
Classification of merchandise under the HTSUS 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, HTSUS, 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 Laser Diodes 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 coherent laser light. Accordingly, the subject Laser Diode
satisfies the terms of heading 8541, HTSUS.
Subheading 8541.40.20, HTSUS, 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 Laser
Diode consists of a laser diode component which satisfies this
description. Therefore, laser diodes, imported separately (i.e.,
without photodiodes) are classifiable under subheading
8541.40.20, HTSUS.
A review of the development of the present HTSUS provision
reveals the following:
1. CCCN: Light-emitting diodes were described in the EN
under the category of "similar semiconductor devices"
and not as "diodes." At this time laser diodes were in
their infancy and were not mentioned in the ENs.
2. CCCN: The 1973 status of the EN, as amended, added the
reference to "Laser Diodes" to the ENs description for
light-emitting diodes, still under the category of
"similar semi-conductor devices."
3. Changes: Nomenclature Committee, in Doc. 22.320, 4-9-
76, considered laser diodes (85.21 v. 90.13) and
resolved the issue by adding "light-emitting diodes" to
heading 85.21 [to keep laser diodes in 85.21] and by
creating in the ENs a new category for light-emitting
diodes. These articles were originally described in
the ENs under the category of "similar semiconductor
devices," not the category for "diodes." This was the
birth of the text in its current format.
4. Summary analysis after the 1976 proposal: Light-
emitting diodes were added to the heading; the ENs to
85.21 (renumbered 85.30 and finally 85.41) were
restructured to provide for a category of articles that
fell within "light-emitting;" and this category was
apparently understood to include laser diodes. As an
example of this "apparent understanding as to the scope
of the term "light-emitting diode," we note the EC
proposal in Doc. 31.255, 1-18-84, to divide the ENs on
light-emitting diodes into two paragraphs (the current
form) "because these are two different types of
articles." There was no limitation of the term "light-
emitting diode" to only one kind of photoemitter
diodes.
Therefore, we conclude that the term "light-emitting diode,"
as used in the HTSUS, is a generic term for what are now referred
to as semiconductor photoemitters. Thus, laser diodes are light-
emitting (photoemitters) and fall within that term in subheading
8541.40.20, HTSUS.
However, the instant Laser Diode also consists of a
photodiode component which does not satisfy this description.
Therefore, reference must be made to GRI 3.(b) which states:
Mixtures, composite goods consisting of different materials
or made up of different components, and goods put up in sets
for retail sale, which cannot be classified by reference to
3(a), shall be classified as if they consisted of the
material or component which gives them their essential
character, insofar as this criterion is applicable.
It is Customs position that the Laser Diode imparts the
essential character of the instant merchandise since the
Photodiode is used merely to detect light emitted by the Laser
Diode, to ensure that the Laser Diode is functioning properly.
Therefore, since the essential character of the instant
Toshiba Laser Diode is determined to be the "Light-emitting
diode," it is not classifiable as the protestant claims in
subheading 8541.40.60, HTSUS, which provides for "Other diodes."
HOLDING:
The Toshiba Laser Diode, combined with a subsidiary
Photodiode is properly classifiable within subheading 8541.40.20,
HTSUS, which provides for "Light-emitting diodes." The rate of
duty is 2% percent ad valorem.
The protest should be denied in full. A copy of this
decision should be attached to the Customs Form 19 as part of the
Notice of Action, and forwarded to the protestant.
Sincerely,
John Durant, Director
Commercial Rulings Division