HQ 088341

February 26, 1991

CLA-2 CO:R:C:M 088341 AJS

CATEGORY: Classification

TARIFF NO.: 8541.40.80

Mr. W.J. Dolbeer

Manager Contracts

AVEX Electronics

4807 Bradford Drive

Huntsville, Alabama 35805

RE: Photosensor; Photointerrupter; Heading 8541; Explanatory Note

85.41; Subheading 8541.40.80; McGraw-Hill Encyclopedia of Science

and Technology; Heading 8536; Explanatory Note 85.36(I);

Subheading 8536.50.00; Kyocera International, Inc. v. United

States; H. Rep. No. 100-576; IEEE Standard Dictionary of

Electrical and Electronic Terms.

Dear Mr. Dolbeer:

This in response to your letter of September 11, 1990,

requesting a tariff classification ruling regarding a photo-

sensor.

FACTS:

The article at issue is a photosensor or photointerrupter.

The sensor is a solid state device consisting of a light emitting

diode (LED) and a photo darlington transistor (i.e., photo-

transistor) mounted in opposite arms of a U-shaped housing so

that the light emitted by the LED is directed at the receiving

surface of the phototransistor. The housing consists of two

pieces of molded black plastic glued together so that after

assembly, the housing, the LED and phototransistor become an

inseparable unit. There are no electrical connections between

the LED and the phototransistor within the unit.

Photosensors have a wide variety of uses. The most common

usage is as a sensor for shaft revolution or shaft speed. In

this example, the sensor operates by means of a slotted disc

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fastened to the shaft which interrupts the beam from the LED to

the phototransistor. In the use under consideration, the sensor

will inhibit the operation of a personal computer unless the beam

is interrupted by the insertion of a key.

ISSUE:

Whether the photosensor is properly classifiable within

heading 8541, Harmonized Tariff Schedule of the United States

Annotated (HTSUSA), which provides for photosensitive

semiconductor devices; or classifiable within heading 8536,

HTSUSA, which provides for electrical apparatus for switching

electrical circuits.

LAW AND ANALYSIS:

Heading 8541, HTSUSA, provides for photosensitive

semiconductor devices. These comprise 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. Explanatory Note

(EN) 85.41. The photosensor at issue satisfies this description.

It contains an LED which directs emitted rays at the receiving

surface of a phototransistor. One of the main types of

photosensitive semiconductor devices are photovoltaic cells. EN

85.41(B)(2). These include the special category of devices

referred to as photocouples and photorelays, which consist of

electroluminescent diodes combined with photodiodes, photo-

transistors or photothyristors. EN 85.41(B)(2)(iii).

The 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 photo-

electric 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, HTSUSA, 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.

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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 photo-

transistors. 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.

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. MH at 419. This configuration uses an electronic

input signal to cause an electronic output signal without any

electrical connection between the input (ie., LED) and the output

(i.e., phototransistor) terminals. The subject photosensor

satisfies this description. It is U-shaped so that the light

emitted by the LED is optically coupled to the light-sensitive

area of the phototransistor. When the rays emitted by the LED

are broken by a shaft or key, 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 photosensor. Therefore, the subject photosensor also

satisfies the descriptions of how an optical coupled isolator

functions.

It is argued that only assemblies and panels of photovoltaic

cells are included within heading 8541, HTSUSA. The language of

EN 85.41(b)(2)(i), which deals only with solar cells, is cited as

support for this argument. This note states that this \"heading

also covers solar cells, whether or not assembled in modules or

made up into panels. However, the heading does not cover modules

equipped with elements, however, simple, (for example, diodes to

control the direction of the current), which supply the power

directly to, for example, a motor, an electrolyser (heading

85.01).\" We disagree with this argument for the following

reasons. First, the cited language relates only to solar cells

and not photocouples or photorelays. Therefore, this language is

not applicable to the classification of these devices. Second,

this argument contradicts the text of subheading 8541.40, HTSUSA,

which provides for \"photovoltaic cells whether or not assembled

in modules or made up in panels\" (emphasis added). This language

indicates that subheading 8541.40, HTSUSA, includes photovoltaic

cells, and these cells assembled in modules or made up in panels.

Thus, we cannot conclude that heading 8541, HTSUSA, is limited to

only assemblies and panels of photovioltaic cells.

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It is additionally argued that heading 8541, HTSUSA, does

not include modules made up of devices listed within this

heading. We also disagree with this argument. It is

contradicted by the text of subheading 8541.40, HTSUSA, which

states that the photosensitive semiconductor devices of this

subheading include \"photovoltaic cells whether or not assembled

in modules\". In addition, the ENs describes photocouples and

photorelays (i.e., types photovoltaic cell) as devices which

combine electroluminescent diodes and phototransistors (i.e.,

devices of heading 8541). The subject article satisfies this

description because it combines a LED and phototransistor in a

module. Therefore, we cannot conclude that heading 8541, HTSUSA,

does not include modules made up of the devices listed within

this heading.

Heading 8536, HTSUSA, provides for electrical apparatus for

switching or protecting electrical circuits, or for making

connections to or in electrical circuits (for example, switches,

relays etc.,). 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; they may

be known as single pole, double pole, triple pole, etc.,

according to the number of switch circuits incorporated. EN

85.36(I). This group also includes change-over switches and

relays. EN 85.36(I). The switches of this heading include small

switches for use in radio apparatus, electrical instruments.,

etc., switches of a kind used in domestic electrical wiring

(e.g., tumbler switches, lever operated switches, rotary

switches, pendant switches, push button switches) and switches

for industrial application (such as, limit switches, cam

switches, microswitches and proximity switches).

It is argued that the subject photosensor is properly

classifiable within subheading 8536.50.00, HTSUSA, as an \"other

switch\". While the subject photosensor may operate as a type of

\"on\" and \"off\" device, in that it can be used to inhibit the

operation of a personal computer unless the couple is broken

between the LED and phototransistor by a key, it is not a type

of device described within the terms nor ENs to heading 8536,

HTSUSA. Accordingly, it is Customs position that the subject

photosensor is not the type of device intended by Congress to be

included within this subheading.

The Court of International Trade (CIT) has addressed the

scope of the predecessor provision to heading 8536, HTSUSA (i.e,

item 685.90, Tariff Schedules of the United States (TSUS)).

Kyocera International, Inc., v. United States (Kyocera), 527 F.

Supp 337, aff\'d 681 F.2d 796 (1982). This case involved the

classification of a semiconductor package used in integrated

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circuits. The CIT stated in relation to item 685.90, TSUS, that

a seemingly broad descriptive tariff term is not to be taken as

encompassing every article which may literally come within that

term but rather only those articles of the type intended by

Congress. Kyocera at 96. The CIT observed that neither

integrated circuit packages nor any devices serving a similar

function are mentioned as electrical devices included within

685.90, TSUS. Kyocera at 97. The CIT concluded that \"\[p\]lainly

then, integrated circuit packaging was not intended by Congress

to be encompassed by the seemingly broad descriptions in item

685.90.\" Kyocera at 98. In this instance, neither photosensors

nor any devices serving a similar function are mentioned in the

text or ENs of heading 8536, HTSUSA. However, photosensors

satisfy the description of optical coupled isolators which are

specifically enumerated within heading 8541, HTSUSA. Therefore,

the rationale of Kyocera supports the conclusion that photo-

sensors also are not the type of device intended by Congress to

be encompassed by the seemingly broad descriptions within heading

8536, HTSUSA.

Congress has indicated that earlier tariff decisions must

not be disregarded in applying the HTSUSA. The conference report

to the Omnibus Trade Bill of 1988, states that \"on a case-by-case

basis prior decisions should be considered instructive in

interpreting the HTS\[USA\], particularly where the nomenclature

previously interpreted in those decisions remain unchanged and no

dissimilar interpretation is required by the text of the

HTS\[USA\].\" H. Rep. No. 100-576, 100th Cong., 2D Sess. 548, 550

(1988). This situation exists in the present case. Both item

685.90, TSUS, and subheading 8536, HTSUSA, provide for switches

and other electrical apparatus for making or breaking electrical

circuits. In addition, we find no language within the text or

ENs to the HTSUSA which require a dissimilar interpretation.

Thus, we find the interpretation rendered in Kyocera instructive

in this instance.

In relation to item 685.90, TSUS, the Court additionally

stated that \"\[t\]he field of electronics is, of course, a

technical one, and it is well settled that in instances where the

common meaning of a technical term is in issue, as here, reliance

should not be confined to general lexicons, but technical

dictionaries may be consulted. Kyocera at 94. A switch is

described as:

\(1\) (electrical systems). A device for opening and closing

or for changing the connection of a circuit.

\(2\) (computing system). A device or programming technique

for making a selection, for example, a toggle, a

conditional jump.

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\(3\) (electric and electronic parts and equipment). A device

for making, breaking, or changing the connections in an

electric circuit. A switch may be operated by manual,

mechanical, hydraulic, thermal, barometric or

gravitational means, or by electromechanical means not

following within the definition of \"relay\".

\(4\) (transmission and distribution). A device for opening

and closing or for changing the connection of a circuit.

IEEE Standard Dictionary of Electrical and Electronic Terms,

second ed., p. 694 (1977). The subject photosensor does not

satisfy these technical descriptions of switches. Instead, the

photosensor satisfies both the technical and HTSUSA descriptions

of a photosensitive semiconductor device, and more specifically

an optical coupled isolator.

HOLDING:

The photosensor at issue is properly classifiable within

subheading 8541.40.80, HTSUSA, which provides for optical

coupled isolators, currently dutiable at the rate of 4.2 percent

ad valorem.

Sincerely,

John Durant, Director

Commercial Rulings Division