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