HQ 087600: Protests for further review 0901-9-701040 and 0901-9-701113;photodetectors; laser diodes; Subheading 9027.50.40; UnitedStates v. Corning Glass; check; Subheading 8541.40.20; Subheading8543.80.90; Explanatory Note 85.43; Section XVI, note 1(m);Chapter 90, Additional U.S. Note 2; Explanatory Note 85.41(B).

Native CBP ruling rendition. Applicability is fact-specific; modification/revocation relationships and original publisher date are retained. Publisher sentinel year0001 means unknown date, not a historical legal adoption.

                            HQ 087600

                        December 13, 1990

CLA-2 CO:R:C:G 087600 AJS

CATEGORY: Classification

TARIFF NO.: 9027.50.40  

District Director
U.S. Customs Service
Port of Buffalo
111 West Huron Street
Buffalo, NY 14202

RE: Protests for further review 0901-9-701040 and 0901-9-701113;
photodetectors; laser diodes; Subheading 9027.50.40; United
States v. Corning Glass; check; Subheading 8541.40.20; Subheading
8543.80.90; Explanatory Note 85.43; Section XVI, note 1(m);
Chapter 90, Additional U.S. Note 2; Explanatory Note 85.41(B).

Dear District Director:

     Protest No. 0901-9-701040 dated 06/05/89, was filed against
the liquidations on 03/10/89, 04/07/89 and 03/24/89 regarding
photodetectors.  Protest No. 0901-9-701113 dated 06/20/89, was
filed against the liquidations on 03/24/89, 04/07/89 and 04/14/89
regarding laser diodes.

     No specific information is provided for the laser diodes in
question.  However, the port of Buffalo agrees that the laser
diodes satisfy the description of a light emitting diode within
the meaning of Explanatory Note (EN) 85.41.  Therefore, the laser
diode is properly classifiable within subheading 8541.40.20,
HTSUSA.

FACTS:

     The articles under protest are the PD and AD series
photodetectors.  They are free standing devices which couple high
speed photodiodes to microwave amplifiers.  They are powered from
either a line operated or portable rechargeable battery operated
power supply.  

     The photodectors are designed for detecting optical pulses
or modulated optical signals.  They employ photodiodes for the 

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detection of visible and infrared light, which is converted into
electrical signals.  These signals are amplified and then
analyzed by other instruments such as oscilloscopes or frequency
analyzers.  The photodectors are used in a variety of
applications such as in the communications field to detect
modulations of light, and the pulses of light from a laser.  They
are also used in many experimental applications for detecting
light.  

ISSUE:

     Whether the photodetectors in question are properly
classifiable within subheading 9027.50.40, Harmonized Tariff
Schedule of the United States Annotated (HTSUSA), which provides
for "[o]ther instruments and apparatus using optical radiation 
(ultraviolet, visible, infrared): [e]lectrical.";  or
classifiable within 8543.80.90, HTSUSA, which provides for
"[e]lectrical machines and apparatus, having individual
functions, not specified or included elsewhere in this chapter;
parts thereof: [o]ther."

LAW AND ANALYSIS:

     Heading 9027, HTSUSA, provides for instruments and apparatus
for measuring or checking quantities of light.  The photo-
detectors at issue detect, convert and amplify modulations and
pulses of light in a variety of applications.  They are primarily
used in the process of checking pulses and modulations of light
generated by lasers and communications systems.  

     The term "check" has been defined as to "inspect and
ascertain the condition of esp. to determine that the condition
is satisfactory: * * * investigate and ensure accuracy,
authenticity, reliability, safety or satisfactory performance of
* * * : to investigate and make sure about conditions or
circumstances * * *."  United States v. Corning Glass Works, 66
CCPA 25, 27, 586 F.2d 822, 825 (1978), quoting Webster's Third
New International Dictionary, 381 (1971).  The Court further
stated the term "checking instruments" encompasses machines that
carry out steps in a process for checking whether a quantity
conforms to an imperfection-free standard.  The photodectors
carry out steps in the process of checking optical pulses and
signals for operational efficiency and performance.  Accordingly,
the photodetectors satisfy the description of an instrument and
apparatus for checking quantities of light.

     Subheading 9027.50.40, HTSUSA, provides for other electrical
instruments and apparatus using optical radiations (ultraviolet,
visible and infrared).  The photodectors satisfy the terms of 
this subheading.  They detect visible and near 


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infrared light which is converted into electrical signals, that
are also amplified.  In addition, the photodectors are also an
electrical instrument or apparatus for the purposes of this
subheading.  The term "electrical" in this instance refers to
those articles the operation of which depends on an electrical
phenomenon which varies according to the factor to be
ascertained.  Chapter 90, Additional U.S. Note 2.  The photo-
diode component of the photodetectors satisfies this requirement. 
Photodiodes are characterized by a variation in resistivity when
struck by light.  EN 85.41(B).  Therefore, the photodectors
satisfy the terms of this subheading and are classifiable
therein.  

     The protestant argues for classification of the photodectors
within subheading 8543.80.90, HTSUSA, which provides for other
electrical machines and apparatus having an individual function,
not specified or included elsewhere in this chapter.  The
Explanatory Notes state that heading 8543, HTSUSA, covers all
electrical appliances and apparatus which are not covered more
specifically by a heading of any other Chapter of the
Nomenclature, nor excluded by the operation of a Legal Note to
Section XVI.  As stated previously, the photodectors are covered
more specifically by another heading of the Nomenclature.  In
addition, the legal notes to Section XVI exclude articles of
chapter 90 from classification within chapter 85.  Section XVI,
note 1(m).  The photodectors are also an article of chapter 90. 
Accordingly, the photodetectors are excluded from classification
within subheading 8543.80.90, HTSUSA.

HOLDING:

     The photodectors at issue are properly classifiable within
subheading 9027.50.40, HTSUSA, which provides for "[o]ther
instruments and apparatus using optical radiations (ultraviolet,
visible, infrared): [e]lectrical."  The protest should be denied
and a copy of this letter should be attached to the Customs Form
19 and forwarded to the protestant.

    
                                      Sincerely,


                                      John Durant, Director
                                      Commercial Rulings Division