CLA-2 CO:R:C:M 953265 MBR
District Director
U.S. Customs Service
620 East 10th Ave., Rm 101
Anchorage, AK 99501
RE: Protest No. 3196-91-100019; Showa Denko America; GAP-EPI-R
Type Unmounted Light Emitting Diode Chips; LED; Wafer; Chip;
Chemical Element Doped For Use In Electronics; 3818.00.00;
8541.40.20; 8541.40.60
Dear District Director:
This is our response to Protest Number 3196-91-100019, dated
September 27, 1991, and Application for Further Review, regarding
the classification of "GAP-EPI-R Type Unmounted LED Chips," under
the Harmonized Tariff Schedule of the United States (HTSUS). The
subject merchandise was entered on February 21, 1991, and the entry
was liquidated on August 16, 1991. The protest was timely filed
on September 27, 1991.
FACTS:
The "GAP-EPI-R Type Unmounted LED Chips" ("wafers") are
described as gallium phosphate wafers and dice that are imported
in "material" form to be used exclusively in the manufacture of
Light Emitting Diodes ("LEDs"). After importation the wafers do
not undergo any other processing other than being cut to size,
wired and encapsulated.
The wafers and dice were classified by the port of Anchorage,
Alaska in subheading 8541.40.20, HTSUS, which provides for light-
emitting diodes at a duty rate of 2% ad valorem.
The protestant claims that the wafers "are chips only, not
complete LED devices," and as such are classifiable under
subheading 8541.40.60, HTSUS, which provides for "other diodes,"
at a Free rate of duty.
The question of classification as a doped chemical element for
use in electronics has also been raised.
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The subheadings under consideration are as follows:
3818.00.00 Chemical elements doped for use in electronics, in
the form of discs, wafers or similar forms; chemical
compounds doped for use in electronics: Gallium
arsenide wafers, doped (Free)
* * * * * * * * * * * * * *
8541.40.20 Light-emitting diodes: Light-emitting diodes: Light-
emitting diodes (LEDs) (2%)
* * * * * * * * * * * * * *
8541.40.60 Light-emitting diodes: Light-emitting diodes: Other
diodes (Free)
ISSUE:
Whether the unmounted chips are classifiable as "Chemical
elements doped for use in electronics," or "LEDs," or "Other
diodes," under the HTSUS?
LAW AND ANALYSIS:
The General Rules of Interpretation (GRI's) to the HTSUS
govern the classification of goods in the tariff schedule. GRI 1
states, in pertinent part:
...classification shall be determined according to the terms
of the headings and any relative section or chapter notes...
Van Nostrand's Scientific Encyclopedia, 7th Edition, (1989),
describes the operation of LEDs as follows:
Recombination or injection electroluminescence was first
observed in 1923 by Lossew, who found that when point
electrodes were placed on certain silicon carbide crystals and
current passed through them, light was often emitted.
Explanation of this emission has been possible only with the
development of semiconductor theory. If minority charge
carriers are injected into a semiconductor, i.e., electrons
are injected into p-type material or "positive holes" into n-
type material, they recombine spontaneously with the majority
carriers existing in the material. If some of these
recombinations result in the emission of radiation,
electroluminescence results.
The McGraw-Hill Encyclopedia of Science and Technology, Vol.
10, (1987), page 61, further delineates:
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Some of the most commonly used light-emitting diode structures
are shown in Fig. 2 [page 62]. The metal-flanged, single-
lead
design (Fig 2a) is very rugged and easy to insert; the lead-
frame package (Fig. 2b) can easily incorporate built-in
voltage regulators so that the light-emitting diodes can be
operated over a range of input voltages such as 3-15 V. Some
packages have provisions to focus or redistribute the light,
such as the lead frame with a built-in reflector (Fig. 2c).
Subheading 8541.40.20, HTSUS, provides for: "Light-emitting
diodes (LED's)."
The Harmonized Commodity Description and Coding System
Explanatory Notes (ENs), to heading 8541, page 1399, state:
(C) Light Emitting Diodes
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.
Customs has considered the classification of seventeen
different models of LEDs previously in HQ 088495, dated April 12,
1991. All seventeen models of LEDs considered in HQ 088495 were
complete devices ("structures" or "packages") containing a
resistor, wiring leads, and a housing. They were complete and
ready for installation.
Whereas, the instant wafers merely consist of the LED chemical
material, in bulk, uncut form, consisting of a 2" diameter wafer.
Therefore, in order to become finished LEDs, it is necessary to cut
the LED wafer into many precisely sized chips, mount them, wire
them, and house them.
In their imported state, these wafers are not identifiable as
LEDs in any other way than their chemical composition.
Furthermore, it is unlikely that these wafers would possess the
common or commercial designation of an "unfinished LED."
GRI 2(a) provides guidance for the classification of
incomplete and unfinished articles. It states, in pertinent part:
Any reference in a heading to an article shall be taken to
include a reference to that article incomplete or unfinished,
provided that, as entered, the incomplete or unfinished
article has the essential character of the complete or
finished article....
It is our opinion that the imported wafer does not possess the
essential character of a complete LED, due to the significance and
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number of the missing parts and due to its elemental stage of
advancement. In fact, the instant merchandise does not have the
essential character of a "diode" at all. Therefore, it is not
classifiable under the provision for "Other diodes" as argued by
the protestant.
At its present stage of advancement, at importation, the
instant merchandise is nothing more than a chemical element doped
for use in electronics and is classifiable in subheading
3818.00.00, HTSUS.
HOLDING:
The Showa Denko America "GAP-EPI-R Type Unmounted LED Chips"
are classifiable in subheading 3818.00.00, HTSUS, as chemical
elements doped for use in electronics, in the form of discs, wafers
or similar forms. The rate of duty is Free.
Since reclassification of the merchandise as indicated above
will result in the same rate of duty as the claimed classification,
you should allow the protest in full. A copy of this decision
should be attached to the Customs Form 19 and provided to the
protestant as part of the notice of action on the protest.
Sincerely,
John Durant, Director