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HQ 953561

April 15, 1993

CLA-2 CO:R:C:M 953561 DWS


TARIFF NO.: 8536.50.00

District Director
U.S. Customs Service
909 First Avenue, Room 2039
Seattle, WA 98174

RE: Protest No. 3001-93-100077; Opto Sensor; Explanatory Note 85.36(I); Explanatory Note 85.41(B); Chapter 85, Note 5; 8541.40.95

Dear District Director:

The following is our decision regarding the request for further review of Protest No. 3001-93-100077 concerning your action in classifying and assessing duty on opto sensors under the Harmonized Tariff Schedule of the United States (HTSUS).


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

The merchandise was entered under subheading 8541.40.95, HTSUS, as photosensitive semiconductor devices. However, the entries were liquidated on October 30, 1992, under subheading 8536.50.00, HTSUS, as electrical switching apparatus. The protest was timely filed by the protestant on January 28, 1993.

The subheadings under consideration are as follows:

8536.50.00: [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.

The general, column one rate of duty is 5.3 percent ad valorem.

8541.40.95: [p]hotosensitive semiconductor devices, including photovoltaic cells whether or not assembled in modules or made up into panels; light-emitting diodes: [o]ther: [o]ther.

The general, column one rate of duty is 4.2 percent ad valorem.


Whether the opto sensor is classifiable under 8536.50.00, HTSUS, as electrical switching apparatus, or under subheading 8541.40.95, HTSUS, as a photosensitive semiconductor device?


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

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, are to be used to determine the proper interpretation of the HTSUS. 54 Fed. Reg. 35127, 35128 (August 23, 1989). In part, Explanatory Note 85.36(I) (p. 1389) states:


These apparatus consist essentially of devices for making or breaking one or more circuits in which they are connected, or for switching from one circuit to another . . .

We find that, based upon the description under Explanatory Note 85.36(I), the opto sensor is described under heading 8536, HTSUS. When the paper tray is empty in a printing machine, the sensor breaks an electrical circuit thereby shutting down the machine.

In part, Explanatory Note 85.41(B) (p. 1398) states:


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.

Based upon the description under Explanatory Note 85.41(B), it is our position that the subject opto sensor is not described under heading 8541, HTSUS. The sensor is an electrical switching apparatus. It does not cause a variation in resistivity or generate an electromotive force.

It is claimed that chapter 85, note 5, HTSUS, is dispositive as to the classification of the opto sensor under the HTSUS. It states that:

[f]or the purposes of headings 8541 and 8542:

(a) "Diodes, transistors and similar semiconductor devices" are semiconductor devices the operation of which depends on variations in resistivity on the application of an electric field . . .

For 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, their function.

Chapter 85, note 5, HTSUS, has no effect upon the classification of the merchandise, because the sensor is not described under heading 8541, HTSUS.

Therefore, it is our position that the opto sensor is classifiable under subheading 8536.50.00, HTSUS.


For the foregoing reasons, we find that the opto sensor is classifiable under subheading 8536.50.00, HTSUS, as an electrical switching apparatus.

The protest should be denied 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.


John Durant, Director
Commercial Rulings Division

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