HQ 957646: Reconsideration of HQ 953561; San Francisco Newspaper Printing Co. v. U.S.;Opto Sensor; Optical Coupled Sensor; Explanatory Notes 85.41(B) and (C); HQ 088341; Chapter 85, Note 5; 8536.50.80

Native CBP ruling rendition. Applicability is fact-specific; modification/revocation relationships and original publisher date are retained. Publisher sentinel year0001 means unknown date, not a historical legal adoption.

HQ 957646
May 15, 1995

CLA-2 CO:R:C:M 957646 DWS

CATEGORY: Classification

TARIFF NO.: 8541.40.80

Ms. Marlea Merickel
Hewlett Packard Co.
1000 N.E. Circle Boulevard
Corvallis, OR 97330

RE: Reconsideration of HQ 953561; San Francisco Newspaper Printing Co. v. U.S.;
Opto Sensor; Optical Coupled
Sensor; Explanatory Notes 85.41(B) and (C); HQ 088341;
Chapter 85, Note 5; 8536.50.80

Dear Ms. Merickel:

This is in reference to HQ 953561, dated April 15, 1993, issued to the District Director of
Customs, Seattle, Washington, with regard to Protest 3001-93-100077, filed by you on January
28, 1993, concerning the classification of an opto sensor under the Harmonized Tariff Schedule of
the United States (HTSUS). In the course of ruling on similar merchandise, we have determined
that the holding in HQ 953561 is incorrect.

HQ 953561 is a decision on a specific protest. A protest is designed to handle entries of
merchandise which have entered the U.S. and been liquidated by Customs. A final determination
of a protest, pursuant to Part 174, Customs Regulations (19 CFR 174), cannot be modified or
revoked as it is applicable only to the merchandise which was the subject of the entry protested.
Furthermore, Customs lost jurisdiction over the protested entries in HQ 953561 when notice of
denial of the protest was received by the protestant. See, San Francisco Newspaper Printing Co.
v. U.S., 9 CIT 517, 620 F.Supp. 738 (1935).

However, Customs can modify or revoke a protest review decision to change the legal
principles set forth in the decision. Pursuant to section 625(c)(1), Tariff Act of 1930
[19 U.S.C. 1625(c)(1)], as amended by section 623 of Title VI (Customs Modernization) of the
North American Free Trade Agreement Implementation Act (Pub.L. 103-182, 107 Stat. 2057),
60 days after the date of issuance, Customs may propose a modification or revocation of a prior
interpretive ruling or decision by publication and solicitation of comments in the CUSTOMS
BULLETIN. This revocation will not affect the entries which were the subject of Protest 3001-93-100077, but will be applicable to any unliquidated entries or future importations of similar
merchandise 60 days after publication of the notice of revocation in the CUSTOMS BULLETIN.
Notice of the proposed revocation of HQ 953561 was published April 5, 1995, in the CUSTOMS
BULLETIN, Volume 29, Number 14.

FACTS:

The merchandise consists of an opto sensor (model no. 1990-1142) for use in a printing
machine. The sensor, incorporating a semiconductor, is comprised of a light emitting diode
(LED) source, emitting an infra-red beam, and phototransistor sensor. When the printing machine
is out of paper, the infra-red beam is interrupted, breaking the electrical circuit and shutting down
the printing machine.

The subheadings under consideration are as follows:

8536.50.80: [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: [o]ther.

The general, column one rate of duty for goods classifiable
under this provision is 4.8 percent ad valorem.

8541.40.80: . . . : [p]hotosensitive semiconductor devices,
including photovoltaic cells whether or not
assembled in modules or made up into panels;
light-emitting diodes: [o]ther: [o]ptical
coupled isolators.

Goods classifiable under this provision receive duty-free
treatment.

ISSUE:

Whether the opto sensor is classifiable under subheading 8536.50.80, HTSUS, as other
electrical apparatus for switching electrical circuits, or under subheading 8541.40.80, HTSUS, as
an optical coupled isolator.

LAW AND ANALYSIS:

Classification of merchandise under the HTSUS is in accordance with the General Rules of
Interpretation (GRI's).
GRI 1 provides that classification is determined according to the terms of the headings and any
relative section or chapter notes.

Based upon the information before us, in HQ 953561, we held that the opto sensor was
classifiable under subheading 8536.50.00, HTSUS (the precursor to subheading 8536.50.80,
HTSUS), as other electrical apparatus for switching electrical circuits. It was then our position
that the opto sensor was precluded from classification under heading 8541, HTSUS, as that
provision did not describe the merchandise.

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 or legally binding, provide a commentary on the scope of each heading of the HTSUS,
and are generally indicative of the proper interpretation of these headings. See T.D. 89-80, 54
Fed. Reg. 35127, 35128 (August 23, 1989). In part, Explanatory Notes 85.41(B) and (C) (pp.
1398 - 1399) states that:

(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. . .

The main types of photosensitive semiconductor devices are:

(1) xxx

(2) Photovoltaic cells, which convert light directly into
electrical energy without the need for an external
source of current. Photovoltaic cells based on
selenium are used mainly in luxmeters and exposure
meters. Those based on silicon have a higher output
and are used, in particular, in control and regulating
equipment, for detecting light impulses, in
communication systems using fibre optics, etc.

Special categories of photovoltaic cells are:

(i) xxx

(ii) Photodiodes (germanium, silicon, etc.),
characterised by a variation in resistivity when
light rays strike their p n junction. They are
used in automatic data processing (reading of
punched cards and tapes, data storage), as
photocathodes in certain electronic tubes, in
radiation pyrometers, etc. Phototransistors and
photothyristors belong to this category of
photoelectric receivers. . .

(iii) Photocouples and photorelays consisting of
electroluminescent diodes combined with
photodiodes, phototransistors or photothyristors.

Photosensitive semiconductor devices fall in this heading
whether presented mounted (i.e., with their terminals or
leads), packaged or unmounted.

Light emitting diodes, or electroluminescent diodes,
(based, inter alia, on gallium arsenide or gallium
phosphide) are devices which convert electric energy into
visible, infra-red or ultra-violet rays. They are used,
e.g., for displaying or transmitting data in control
systems.

In HQ 088341, dated February 26, 1991, we held that photosensors, similar to the subject
merchandise, were classifiable under subheading 8541.40.80, HTSUS. In that ruling, we stated
that:

[t]he 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 photoelectric 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, HTSUS, 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. 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 phototransistors. 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.

It is our position that, as with the photosensors in HQ 088341, the subject opto sensor is
classifiable under subheading 8541.40.80, HTSUS, as 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. This configuration
uses an electronic input signal to cause an electronic input signal without any electronic
connection between the input (LED) and the output (phototransistor) terminals. The subject
merchandise satisfies this description. It is our understanding that the opto sensor is configured in
such a way that the light emitted by the LED is optically coupled to the light-sensitive area of the
phototransistor sensor. When the rays emitted by the LED are interrupted, 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 opto sensor. Therefore, based upon the
information you submitted for HQ 953561, the merchandise satisfies the descriptions of how an
optical coupled isolator functions.

Consideration was given to classification of the merchandise under subheading 8536.50.80,
HTSUS, as other electrical apparatus for switching electrical circuits. However, as we stated in
HQ 088341, the merchandise does not meet any of the technical descriptions of switches, nor is the
merchandise similar to any of the exemplars listed under Explanatory Note 85.36.

In part, chapter 85, note 5, HTSUS, states that:

[f]or 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 function, their function.

Even if the opto sensor was described under heading 8536, HTSUS, based upon chapter 85,
note 5, HTSUS, classification of the merchandise under heading 8541, HTSUS, would take
precedence over classification under heading 8536, HTSUS.

Therefore, the merchandise is classifiable under subheading 8541.40.80, HTSUS, as an optical
coupled sensor.

HOLDING:

The opto sensor is classifiable under subheading 8541.40.80, HTSUS, as an optical coupled
sensor.

HQ 953561, dated April 15, 1993, is hereby revoked. In accordance with section 625, this
ruling will become effective 60 days after its publication in the CUSTOMS BULLETIN.
Publication of rulings or decisions pursuant to section 625 does not constitute a change of
practice or position in accordance with section 177.10(c)(1), Customs Regulations [19 CFR
177.10(c)(1)].

Sincerely,

John Durant, Director
Commercial Rulings Division

HQ 957646: Reconsideration of HQ 953561; San Francisco Newspaper Printing Co. v. U.S.;Opto Sensor; Optical Coupled Sensor; Explanatory Notes 85.41(B) and (C); HQ 088341; Chapter 85, Note 5; 8536.50.80

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