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HQ 957646

May 15, 1995

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


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.


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.


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.


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:


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:

(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:

(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.


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


John Durant, Director
Commercial Rulings Division

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