Slip Op. 09-93
UNITED STATES COURT OF INTERNATIONAL TRADE
ENI TECHNOLOGY INC.,
Plaintiff,
Before: Pogue, Judge
v.
Consol. Court No. 05-00170
UNITED STATES,
Defendant.
OPINION
[Plaintiff’s Motion for Summary Judgment is granted in part.
Defendant’s Motion for Summary Judgment is denied.]
Dated: September 1, 2009
Grunfeld, Desiderio, Lebowitz, Silverman & Klestadt LLP
(Robert B. Silverman, Robert F. Seely, Steven P. Florsheim and
Curtis W. Knauss) for the Plaintiff.
Tony West, Assistant Attorney General; Barbara S. Williams,
Attorney in Charge, International Trade Field Office, Commercial
Litigation Branch, Civil Division, U.S. Department of Justice
(Aimee Lee); Yelena Slepak, Office of Assistant Chief Counsel,
International Trade Litigation, U.S. Customs and Border Protection
for the Defendant.
Pogue, Judge: This consolidated action involves the proper
classification of merchandise, identified as “radio frequency
generators” (“RF Generators” or “merchandise”), imported by
Plaintiff ENI Technology Inc. (“ENI”), for use, inter alia, in
Court No. 05-00170 Page 2
semiconductor manufacturing processes.1 ENI challenges the United
States Customs and Border Protection’s (“Customs” or “Government”)
classification of the merchandise as “static converters,” with a
1.5% ad valorem duty. ENI claims that its merchandise is properly
classified as “machines [used] for processing semiconductor
materials,” which are duty free.
Before the Court are cross motions for summary judgment
pursuant to USCIT Rule 56. The Court has exclusive jurisdiction
pursuant to 28 U.S.C. § 1581(a)(2000).2
Because ENI’s merchandise is principally used as parts of
plasma3 processing systems, which are machines used for
semiconductor manufacturing, and because the merchandise does not
1
As described by ENI expert Stephen Fairfax, semiconductor
manufacturing is:
the process of taking materials, silicon or other
materials, that don’t conduct electricity very well and
altering their conducting properties in very precise
and somewhat complicated ways to produce useful
electrical circuits, such as computers or memories.
(Pl.’s Mem. of Law in Supp. of Pl.’s Mot. for Summ. J. (“Pl.’s
Mem.”), Ex. 4, Fairfax Dep. at 81.)
2
28 U.S.C. § 1581(a)(2000)provides: “The Court of
International Trade shall have exclusive jurisdiction of any
civil action commenced to contest the denial of a protest, in
whole or in part, under section 515 of the Tariff Act of 1930 [19
U.S.C. § 1515].” Unless otherwise indicated, further citations
to Title 28 of the U.S. Code are from the 2000 edition.
3
See Illustrated Dictionary of Electronics 536 (Stan
Gibilisco ed., 8th ed., McGraw-Hill 2001) (plasma is “[a] usually
high-temperature gas that is so highly ionized that it is
electrically conductive and susceptible to magnetic fields”).
Court No. 05-00170 Page 3
meet the definition of “static converters,” the court grants ENI’s
motion as to “principal” use. However, because the record, as
currently before the court, does not resolve the subsidiary issue
of the type of plasma processing in which ENI’s imports are used,
(see Def.’s Mem. of Law in Opp’n to Pl.’s Mot. for Summ. J. & in
Supp. of Def.’s Cross-Mot. (“Def.’s Mem.”), Ex. A, Pl.’s Resp. to
Def.’s First Interrogs. & Req. for Produc. of Docs. (“Interrogs.”)
at 1-2 (“The semiconductor processing systems include plasma-
assisted etch systems, which remove materials (‘ETCH’); plasma-
assisted chemical vapor deposition systems, which deposit materials
from a gaseous source (‘CVD’); and plasma-assisted physical vapor
deposition systems, which deposit materials from a solid source
(‘PVD’)”)), the court otherwise denies both motions, directing the
parties to address this subsidiary issue.
For ease of reference, the court opinion is organized in
accordance with the following TABLE OF CONTENTS:
BACKGROUND 4
Undisputed Facts 7
I. The RF Generator 7
II. The Plasma Processing System 12
III. ENI’s Marketing of the RF Generator 14
IV. Use of the RF Generator 15
V. Design of the RF Generator 16
VI. The RF Generator as Known in the Trade 18
Court No. 05-00170 Page 4
STANDARD OF REVIEW 20
DISCUSSION 22
I. The RF Generator as a Heading 8466 “Part” or “Accessory” 22
II. Heading 8504 (“Static Converters”) 29
A. Common Meaning of “Static Converter” 30
B. Explanatory Notes for HTSUS Heading 8504 32
III. Headings 8479 and 8543 40
IV. Classification of the RF Generators 43
A. Subheading 8504.40.95 43
B. Subheading 8479.89.84 44
CONCLUSION 49
BACKGROUND
At issue here are three entries4 of ENI’s5 RF Generators,6
4
The merchandise, imported through the Port of Buffalo, New
York, entered under entry number 336-2732463-8 (entered February
9, 2004, liquidated August 27, 2004), number 336-4092963-6
(entered December 9, 2002, liquidated September 10, 2004) and
number 336-4092697-0 (entered November 22, 2002, liquidated
September 10, 2004). (Def.’s Mem. 1 n.1.)
5
ENI is now known as MKS Instruments, Inc. However, for
consistency, the court will refer to the importer by its former
name. ENI describes itself as a “producer and distributer of
instruments, components and subsystems for advanced manufacturing
processes,” particularly for “semiconductor manufacturing.”
(Pl.’s Mem. 3.)
6
“RF” connotes “radio frequency,” that is, frequency in the
radio spectrum - 10 KHz to 300,000 MHz. See IEEE 100: The
Authoritative Dictionary of IEEE Standards Terms (“IEEE 100”)
912, 914 (7th ed. 2000); Illustrated Dictionary of Electronics,
Court No. 05-00170 Page 5
imported between 2002 and 2004. As noted above, upon liquidation,
Customs classified the RF Generators as “static converters”
pursuant to the Harmonized Tariff Schedule of the United States
(“HTSUS”) Subheading 8504.40.95 (2002) and HTSUS Subheading
8504.40.95 (2004).7 ENI protested the classification, and Customs
denied ENI’s protest on February 11, 2005, applying HQ 966466 (Oct.
24, 2003), available at 2003 WL 23303566. After paying the
required duties, charges and exactions on its RF Generators, ENI
filed suit here.
In its complaint, ENI asserts that its RF Generators are more
supra note 3, 577, 580. (“Hz,” “MHz,”and “KHz” stand for hertz,
megahertz, kilohertz, which are units of frequency.) The
Government refers to the subject machines as “RF Generators”; ENI
originally referred to them as such. (See Pl.’s Compl. at 1;
Pl.’s Mem., Ex. 4, Fairfax Dep. at 43-44.) However, ENI’s
marketing materials and ENI’s more recent filings identify the
subject merchandise as “RF plasma generators.” (Pl.’s Mem., Ex.
1; Pl.’s Resp. to Def.’s Cross Mot. for Summ. J. (“Pl.’s Resp.”),
Ex. 2, Stenglein Aff. ¶¶ 4-13; Pl.’s Mem., Ex. 2, Holber Aff.
passim; Pl.’s Mot. for Summ. J.; Pl.’s Mem., Ex. 3, Fairfax Aff.
¶¶ 15-19.) The Government objects to the latter
characterization. The court makes no finding on this issue, but,
for the purposes of this opinion, refers to the machines as “RF
Generators” consistent with ENI’s complaint.
7
Subheading 8504.40.95 covers:
Electrical transformers, static converters (for example,
rectifiers) and inductors; . . .
Static converters: . . .
Other
Machines liquidated under this Subheading are subject to an ad
valorem duty of 1.5%. Further references to the HTSUS, unless
otherwise indicated, are to the 2004 edition, as the relevant
HTSUS provisions have remained identical from 2002 through 2004.
Court No. 05-00170 Page 6
properly classified either as machines for the processing of
semiconductor materials, under HTSUS 8479.89.84,8 or physical vapor
deposition apparatus, under HTSUS 8543.89.10.9 Accordingly, ENI’s
complaint requests that the court direct the appropriate Customs
officer to re-liquidate the entries, and refund the excess duties
collected, with lawful interest.
8
Subheading 8479.89.84 extends to:
Machines and mechanical appliances having individual
functions, not specified or included elsewhere in this
chapter; parts thereof[]:
Other machines and mechanical appliances[]:
Other[]:
Other:
Machines for processing of semiconductor
materials; machines for production and
assembly of diodes, transistors and
similar semiconductor devices and
electronic integrated circuits[] . . . .
Machines liquidated under this Subheading are free of duty.
9
Subheading 8543.89.10 covers:
Electrical machines and apparatus, having individual
functions, not specified or included elsewhere in this
chapter; parts thereof:
Other machines and apparatus: . . .
Physical vapor deposition apparatus:
Other:
Machines for processing of
semiconductor materials; machines
for production of diodes,
transistors and similar
semiconductor devices and
electronic integrated circuits.
Machines liquidated under this Subheading are also free of duty.
Court No. 05-00170 Page 7
Following discovery, ENI moved for summary judgment,10 arguing
that its RF Generators should be classified under HTSUS
8479.89.84.11 The Government has cross-moved for summary judgment,
defending the original classification, “static converters,” and, in
the alternative, proffering HTSUS 8543.89.96 (“Electrical machines
and apparatus . . . . Other” - a “basket” provision12).
Undisputed Facts
The following undisputed facts are before the court.
I. The RF Generator
The RF Generators are machines that generate power at a fixed
radio frequency.13 They are powered by electricity, i.e., they
10
ENI supports its motion with an affidavit from William M.
Holber, former Senior Director of Advanced Technology at MKS
Instruments (formerly ENI); two affidavits from William
Steinglein, Director of Product Engineering for MKS Instruments
(formerly ENI); two affidavits and a deposition from Stephen A.
Fairfax, owner and president of MTechnology, Inc., a consulting
engineering firm; and ENI specification sheets and marketing
materials.
11
At oral argument, ENI abandoned its requested alternative
classification under HTSUS 8525.10.90.25 (“Transmission apparatus
for radiotelephony”).
12
“‘Basket’ or residual provisions of HTSUS Headings . . .
are intended as a broad catch-all to encompass the classification
of articles for which there is not a more specifically applicable
subheading.” Rollerblade, Inc. v. United States, 282 F.3d 1349,
1354 (Fed. Cir. 2002) (quoting EM Indus., Inc. v. United States,
22 CIT 156, 165, 999 F. Supp. 1473, 1480 (1998)).
13
The entries at issue contain five different models from
three different product lines of ENI-imported RF Generators. The
imported RF Generators include ENI’s model number 1B-10013-10
(from its “Spectrum” series, with an output of 10 kW at 13.56
MHz); model numbers ACG-6B-01 and ACG-6B-02 (from its “ACG”
Court No. 05-00170 Page 8
receive alternating current (“AC”)14 at 60 Hz from the main U.S.
electric grid15 (“mains power”), from which they generate or produce
power at radio frequencies. To be exact, the RF Generator creates
RF current at 13.56 MHz16 ranging from 300 to 10,000 watts.17 It is
undisputed that the output of RF Generator is RF current,18 in other
series, with an output of 600 W at 13.56 MHz); and model numbers
GHW12Z13DF2N01 and GHW25A13DF3N01 (from its “GHW” series, with an
output of 1.25 kW at 13.56 MHz and 2.5 kW at 13.56 MHz,
respectively). (Pl.’s Mem., Ex. 1, at 8, 11-19; Pl.’s Mem. 3 &
ns.1-3; Pl.’s Mem., Ex. 4, Fairfax Dep. at 40-42; Pl.’s Resp.,
Ex. 2, Stenglein Aff. ¶¶ 10-11; Pl.’s Mem., Ex. 3, Fairfax Aff. ¶
17.) “W” and “kW” stand for watts and kilowatts, respectively,
which are units of electric power.
14
“Alternating current” identifies a current that
alternates in direction of flow. See Concise Encyclopedia of
Engineering 31 (2004); Illustrated Dictionary of Electronics,
supra note 3, 22; IEEE 100, supra note 6, 28. (See also Pl.’s
Mem., Ex. 4, Fairfax Dep. at 21-22 (“[C]urrent is the flow of
charged particles, and alternating current means that the flow of
the charge periodically reverses”), 32; Pl.’s Mem., Ex. 3,
Fairfax Aff. ¶¶ 4-5.)
15
(See Pl.’s Mem., Ex. 2, Holber Aff. ¶ 7; Pl.’s Mem., Ex.
4, Fairfax Dep. at 42.)
16
(See Pl.’s Mem., Ex. 2, Holber Aff. ¶ 7; Pl.’s Mem., Ex.
4, Fairfax Dep. at 63; Pl.’s Mem., Ex. 3, Fairfax Aff. ¶ 18(g).)
“Factory-set frequencies cannot be reset by purchaser/user.”
(Pl.’s Mem., Ex. 2, Holber Aff. ¶ 13(c).)
17
(See Pl.’s Mem., Ex. 2, Holber Aff. ¶ 8; Pl.’s Resp., Ex.
2, Stenglein Aff. ¶ 11.)
18
(See Pl.’s Mem., Ex. 4, Fairfax Dep. at 35, 39; Pl.’s
Resp., Ex. 2, Stenglein Aff. ¶ 6.)
The parties generally describe the RF Generator’s output as
“RF power.” “Power” generally indicates “[a]ny form of energy or
force available for application to work” or “[m]otive power or
heat . . . obtained from an electrical supply.” XII Oxford
English Dictionary 261 (2d ed. 1989). “Radio-frequency power” is
defined as “alternating current power at radio frequencies.”
Court No. 05-00170 Page 9
words, alternating current in the radio frequency range, at a
certain wattage.19
In the process of making RF current, RF Generators convert the
AC to direct current (“DC”) using a rectifier or similar device.20
The RF Generator also regulates the DC “to keep the voltage very
uniform” in order to “hold the RF power constant.” (Pl.’s Mem., Ex.
4, Fairfax Dep. at 60.) Subsequently, the various RF Generator
models utilize either a narrow band RF crystal oscillator or a
direct digital synthesis module (“DDS”) to generate RF signal.21
The oscillator or DDS “shape[s] the wave form,” that is, it
Illustrated Dictionary of Electronics, supra note 3, 578. (See
also Pl.’s Mem., Ex. 3, Fairfax Aff. ¶ 9 (“‘AC power’ refers to
voltage (pressure of flow) x current (mass of flow) at AC
frequencies (not over 400 Hz).” (emphasis omitted)); Pl.’s Mem.,
Ex. 4, Fairfax Dep. at 38 (“RF is for radio frequency. The intent
of this generator is to produce power at radio frequencies and to
transmit that power to the load.”).)
19
The parties debate whether the “RF current” can
technically be considered “AC.” However, this disagreement does
not create issues of material fact for trial.
20
(See Def.’s Mem., Ex. A, Interrogs. ¶ 4(a); Pl.’s Mem.,
Ex. 2, Holber Aff. ¶ 12; Pl.’s Mem., Ex. 4, Fairfax Dep. at 42,
47; Pl.’s Resp., Ex. 2, Stenglein Aff. ¶ 12.)
A “rectifier” is a “nonlinear circuit component that allows
more current to flow in one direction than in the other” that is
“used primarily for the conversion of alternating current (ac) to
direct current (dc).” Concise Encyclopedia of Engineering, supra
note 14, 602; see also IEEE 100, supra note 6, 939 (a “rectifier”
is a “converter for conversion from ac [alternating current] to
dc [direct current]”).
21
(See id. at 49-50, 52-53; Pl.’s Mem., Ex. 2, Holber Aff.
¶ 12; Pl.’s Resp., Ex. 2, Stenglein Aff. ¶ 12(b).)
Court No. 05-00170 Page 10
generates the desired 13.56 MHz frequency.22
End users purchase RF Generators to obtain “not just the [RF]
frequency but [also] . . . hundreds or thousands of watts of power
at that frequency.” (Pl.’s Mem., Ex. 4, Fairfax Dep. at 64.) To
serve this purpose, the RF signal is transferred from the
oscillator/DDS through a “variable attenuator”23 to either an
amplifier or an inverter, depending on the model.24 The variable
attenuator, which reduces the amplitude or magnitude of the signal,
is used so as to “control the final amount of power that is
delivered to the load[25].” (Pl.’s Mem., Ex. 4, Fairfax Dep. at 57.)
The amplifier or inverter receives the signal and increases
its wattage and current levels to desired specifications.26
Amplifiers and inverters operate in different ways - the amplifier
matches and amplifies an incoming signal,27 whereas an inverter
22
(See Pl.’s Mem., Ex. 2, Holber Aff. ¶ 12; Pl.’s Mem., Ex.
4, Fairfax Dep. at 52-53.)
23
(See Pl.’s Mem., Ex. 4, Fairfax Dep. at 56.) Some,
though not all, of the models contain a variable attenuator. (See
id. at 60-61.)
24
(See id. at 45-46, 48-49, 51; Pl.’s Mem., Ex. 2, Holber
Aff. ¶ 12.)
25
“[E]lectrical engineers use the term ‘load’ to denote the
ultimate use of the electric power.” (Pl.’s Mem., Ex. 4, Fairfax
Dep. at 67-68.)
26
(See Pl.’s Mem., Ex. 2, Holber Aff. ¶ 12; Pl.’s Resp.,
Ex. 2, Stenglein Aff. ¶ 12(c).)
27
(See Pl.’s Mem., Ex. 4, Fairfax Dep. at 48-49, 56.)
Court No. 05-00170 Page 11
“converts DC to some form of alternating current” and makes only
one type of waveform whose “design is fixed by the inverter” - but
both devices perform this “same function” in the RF Generator.
(Pl.’s Mem., Ex. 4, Fairfax Dep. at 48, 51.)
In essence, according to ENI’s evidence, the AC input at 60 Hz
is converted into DC; that DC then facilitates the creation of or
is converted into (alternating) RF current.28 Notably, the RF
Generator converts AC to RF in two steps rather than one. (Id. at
58-59.) According to Fairfax, RF is created in two steps because
to do so is “most practical and most economical.” (Id.)29
Once created, the RF Generator’s alternating current at radio
frequency 13.56 MHz is transmitted through a 50-ohm coaxial cable.
(Pl.’s Stmt. of Material Facts Not in Issue (“Pl.’s Stmt.”) ¶ 9.)30
It is this output which then has utility within the manufacturing
process.
28
The Government does not agree that the DC “facilitates
the creation of” RF current, but contends that the DC “is
converted into” RF current. The court need not resolve this
disputed factual issue.
29
The nature of this “conversion” step in the RF
Generators’ operation is contested, although this factual matter
is not germane to the motions before the court.
30
(See Pl.’s Mem., Ex. 4, Fairfax Report at 8; Pl.’s Mem.,
Ex. 2, Holber Aff. ¶¶ 12, 13(b); Pl.’s Resp., Ex. 2, Stenglein
Aff. ¶ 6; Pl.’s Mem., Ex. 4, Fairfax Dep. at 39.)
Court No. 05-00170 Page 12
II. The Plasma Processing System
The RF Generator can be used in various types of plasma
processing, e.g., production of semiconductor devices and
integrated circuits through PVD, CVD and etch plasma processing.31
The plasma processing system or “tool”32 is comprised of a set
of room-sized machines, each segregated in its own housing and
performing its own function, which together form the plasma
processing system.33 (See Def.’s Mem., Ex. A, Interrogs. ¶¶ 2-4.)
The RF Generator operates with these machines.34 (See id.)
When used as a part of a plasma processing system, the RF
31
(See Pl.’s Mem. 8; Def.’s Mem., Ex. A, Interrogs. ¶ 2(a);
Pl.’s Mem., Ex. 4, Fairfax Dep. at 82.) ENI has not presented
evidence as to what percentage of its RF Generators are used or
intended to be used, respectively, in CVD, PVD or plasma etch
processing of semiconductors.
32
A “tool” is “a semiconductor industry term for a
particular machine that does some sort of step in the process of
making an integrated circuit.” (Pl.’s Mem., Ex. 4, Fairfax Dep.
at 78.)
33
(Pl.’s Mem. 7; id., Ex. 4, Fairfax Dep. at 83 (“The
plasma chamber is also part of the tool, but the tool itself is
usually a very large, very complicated machine that will have a
lot of other stuff besides the RF Generator and the plasma
chamber.”).)
34
Other machines in the tool include the “plasma chamber,
electrostatic chuck, RF matching network, chemical/gas
transmission pumps and valves, effluent handling devices,
material handlers, and system controller.” (Pl.’s Resp., Ex. 2,
Stenglein Aff. ¶ 5; see also Pl.’s Mem., Ex. 1 at 5 (diagram
representing the RF Generator as part of the “complete RF
delivery subsystem” - including a “serial interface,” a “plasma
generator,” a “matching network,” a “plasma probe,” and a “plasma
chamber”); Pl.’s Mem., Ex. 4, Fairfax Dep. at 72-73.)
Court No. 05-00170 Page 13
Generator is the only source of RF power to the plasma chamber.35
As such, RF Generators, in providing RF current at 13.56 MHz, are
integral to the plasma processing system.36 From the RF Generator,
the RF output flows through the coaxial cable to a separate machine
called an “impedance[37] matching network” that “matches the output
impedance of the RF [G]enerator to that of the plasma processing
chamber.”38 The output then flows from the impedance matching
network to an antenna located within the sealed plasma chamber
containing a gas.39 The antenna is also not part of the RF
35
(See Pl.’s Resp., Ex. 2, Stenglein Aff. at 2.)
36
(Def.’s Mem., Ex. A, Interrogs. ¶ 5(a); Pl.’s Mem., Ex.
2, Holber Aff. ¶ 9; Pl.’s Mem., Ex. 4, Fairfax Dep. at 132-33.)
37
“Impedance” is defined as “[t]he overall opposition to an
electric current, arising from the combined effect of resistance
R and reactance X and measured by the ratio of the e.m.f. to the
resulting current . . . .” VII Oxford English Dictionary, supra
note 18, 704; see also Illustrated Dictionary of Electronics,
supra note 3, 356 (impedance is the “total opposition offered by
a circuit or device to the flow of alternating current”).
“Impedance matching” involves “[t]he insertion of a suitable
transformer or network between circuits having different
impedances, for the purpose of optimizing power transfer.”
Illustrated Dictionary of Electronics, supra note 3, 356. Thus,
an “impedance-matching network” is a “network of discrete
components, often adjustable, that is used to match a circuit
having a certain impedance to a circuit having a different
impedance.” Id.
38
(Pl.’s Mem., Ex. 2, Holber Aff. ¶ 10; see also Pl.’s
Resp., Ex. 2, Stenglein Aff. ¶ 6; Pl.’s Mem., Ex. 4, Fairfax Dep.
at 57-58.)
39
(Pl.’s Mem., Ex. 2, Holber Aff. ¶ 10; Pl.’s Resp., Ex. 2,
Stenglein Aff. ¶¶ 6-7.)
Court No. 05-00170 Page 14
Generator.40 Rather, the antenna receives the RF Generator’s output
and emits RF electromagnetic waves into the chamber.41 The waves
transform the gas into an ionized gas or “plasma.”42 This plasma,
in turn, causes materials to be deposited on or patterns etched
into substrate, i.e., silicon “wafers.”43
III. ENI’s Marketing of the RF Generator
ENI has presented evidence that it markets its RF Generators
primarily for use in plasma processing or thin film processing
systems,44 including the processing of semiconductors or integrated
circuits.45 ENI does not advertise its products as “static
converters.”46 However, ENI’s marketing materials, as presented to
the court, do mention uses for the RF Generators apart from
semiconductor processing, such as other thin film processing
40
(Def.’s Stmt. of Undisputed Material Facts (“Def.’s
Stmt.”) ¶ 11.)
41
(Pl.’s Stmt. ¶ 9; Pl.’s Resp., Ex. 2, Stenglein Aff. ¶
7.)
42
(Pl.’s Stmt. ¶ 11; Pl.’s Resp., Ex. 1, Fairfax Aff. ¶
13.)
43
(Pl.’s Stmt. ¶ 12.)
44
(See Pl.’s Mem., Ex. 4, Fairfax Report at 7 (“[ENI]
markets and sells the RF [G]enerators at issue specifically for
plasma processing applications.”); Pl.’s Mem., Ex. 1 at 3, 4, 8,
9.)
45
(See Pl.’s Mem., Ex. 1 at 4, 8.)
46
(See Pl.’s Resp., Ex. 1, Fairfax Aff. ¶ 14. See also
Pl.’s Mem., Ex. 1.)
Court No. 05-00170 Page 15
applications (i.e., manufacture of flat panel displays, optical
media and industrial coatings) and industrial uses.47
IV. Use of the RF Generator
Despite the potential for other industrial uses, ENI has
presented evidence that its RF Generators are principally used by
its consumers in plasma processing applications.48 ENI also offers
evidence to show that RF Generators are primarily used specifically
for plasma processing of semiconductors.49 One study cited by ENI
states that, on average in 2002 through 2004, over 80 percent of RF
Generators sold in the United States were used for semiconductor
manufacturing. (See Pl.’s Mem., Ex. 2 at Ex. B.) According to
ENI’s proffered evidence, most end users of RF Generators are
indeed in the business of manufacturing semiconductors.50 However,
as noted above, ENI’s evidence also indicates that the RF
Generators are used for other applications aside from semiconductor
processing, again, including thin film processing applications to
manufacture or package products other than semiconductors.51
47
(See Pl.’s Mem., Ex. 1 at 4, 8.)
48
(See Pl.’s Mem., Ex. 4, Fairfax Dep. at 43, 70-71, 126;
Pl.’s Resp., Ex. 2, Stenglein Aff. ¶ 5; Pl.’s Mem., Ex. 2, Holber
Aff. ¶¶ 10-11.)
49
(See, e.g., Pl.’s Mem., Ex. 4, Fairfax Report at 4; Pl.’s
Mem., Ex. 2, Holber Aff. ¶¶ 10-11, 14.)
50
(See Pl.’s Mem., Ex. 2, Holber Aff. ¶ 14; Pl.’s Mem., Ex.
4, Fairfax Report at 6.)
51
(See Pl.’s Mem., Ex. 4, Fairfax Dep. at 78-79.)
Court No. 05-00170 Page 16
V. Design of the RF Generator
Moreover, ENI presents evidence that the principal design
purpose of its RF Generator is to produce RF current or RF power52
for plasma processing,53 and, more specifically, to manufacture
semiconductor devices.54 In support, ENI further notes that this
design purpose is reflected in the subject RF Generators’
particular characteristics that distinguish them from static
converters and other RF Generators.55 For example, the subject RF
Generators:
• comply with specific safety standards of the semiconductor
manufacturing industry, namely SEMI Standards F-47 or S2-
02000;56
• emit output factory-set at 13.56 MHz for use in plasma
processing57 and, more specifically, plasma processing of
52
(See Pl.’s Mem., Ex. 4, Fairfax Dep. at 64-65; Pl.’s
Mem., Ex. 2, Holber Aff. ¶ 5; see also Pl.’s Resp., Ex. 2,
Stenglein Aff. ¶ 12(g).)
53
(Pl.’s Mem., Ex. 4, Fairfax Report at 6.)
54
(See Pl.’s Mem., Ex. 2, Holber Aff. at 2; Pl.’s Mem., Ex.
4, Fairfax Dep. at 18, 64-65, 75.)
55
(See Pl.’s Mem., Ex. 4, Fairfax Dep. at 77; Pl.’s Mem.,
Ex. 2, Holber Aff. ¶¶ 13, 17; Pl.’s Mem., Ex. 4, Fairfax Report
at 8-9.)
56
(See Pl.’s Mem., Ex. 2, Holber Aff. ¶ 13(e); Pl.’s Ex. to
Pl.’s Resp. to the Court’s Questions in its Letter Dated May 13,
2009 (“Pl.’s Resp. to Court”) Ex. 1, Stenglein Aff. ¶¶ 8-9.)
57
(See Pl.’s Mem., Ex. 2, Holber Aff. ¶ 13(c); Pl.’s Mem.,
Ex. 3, Fairfax Aff. ¶ 18(g); Pl.’s Resp., Ex. 2, Stenglein Aff. ¶
Court No. 05-00170 Page 17
semiconductors;58
• control and monitor this output to keep it constant and
uniform;59
• are designed to interact with remotely-operated user
computers;60
• utilize a specified language or protocol;61
• are designed to interact with and bolt into the tool;62
• can measure “reflected power”63 (which is particularly a
problem when using RF current to stimulate plasma);64
• are designed to manage the fluctuating impedance of plasma and
11.)
58
(Def.’s Mem., Ex. A, Interrogs. ¶ 4(a).)
59
(See Pl.’s Mem., Ex. 4, Fairfax Dep. at 76; Pl.’s Resp.,
Ex. 2, Stenglein Aff. ¶ 12(g); Pl.’s Mem., Ex. 2, Holber Aff. ¶
12; Pl.’s Mem., Ex. 3, Fairfax Aff. ¶ 18(f); Def.’s Mem., Ex. A,
Interrogs. ¶ 4(a).)
60
(See Pl.’s Mem., Ex. 2, Holber Aff. ¶ 13(d); Pl.’s Mem.,
Ex. 3, Fairfax Aff. ¶ 18(h); Pl.’s Resp., Ex. 2, Stenglein Aff. ¶
12(e).)
61
(See Pl.’s Mem., Ex. 4, Fairfax Dep. at 75-76; Pl.’s
Resp., Ex. 2, Stenglein Aff. ¶ 8(b).)
62
(See Pl.’s Resp., Ex. 2, Stenglein Aff. ¶ 8(a); Pl.’s
Mem., Ex. 4, Fairfax Dep. at 78.)
63
“Reflected power,” in the context of “a transmission line
not perfectly matched to a load at the feed point,” is “an
expression of the amount of electromagnetic field reflected from
the feed point rather than absorbed by the load.” Illustrated
Dictionary of Electronics, supra note 3, 589.
64
(Pl.’s Mem., Ex. 4, Fairfax Report at 8; Pl.’s Mem., Ex.
4, Fairfax Dep. at 66-67.)
Court No. 05-00170 Page 18
work with ENI-manufactured impedance matching networks to
protect against reflected power;65 and
• come with output connectors for 50-ohm-impedance coaxial
cables.66
VI. The RF Generator as Known in the Trade
ENI also presents expert evidence that, in the trade, RF
Generators are primarily described with reference to their
application in semiconductor and integrated circuit processing.67
According to ENI’s evidence, the RF Generator could be considered
a RF “power supply,”68 a “machine,”69 an “electrical machine”70 or an
“electrical appliance.”71 However, ENI’s proffered evidence
disputes that, in the electrical engineering trade, the RF
65
(See Pl.’s Mem., Ex. 2, Holber Aff. at ¶¶ 13(f), 16;
Pl.’s Mem., Ex. 4, Fairfax Dep. at 77.) However, according to
Fairfax, impedance matching networks are generally used with all
RF Generators, regardless of whether they are being used to
manufacture semiconductors. (See Pl.’s Mem., Ex. 4, Fairfax Dep.
at 116-17.)
66
(See Pl.’s Mem., Ex. 2, Holber Aff. ¶ 12; Pl.’s Mem., Ex.
3, Fairfax Aff. ¶ 14; Pl.’s Mem., Ex. 4, Fairfax Report at 8;
Pl.’s Resp., Ex. 2, Stenglein Aff. ¶ 12(f).)
67
(See Pl.’s Mem., Ex. 2, Holber Aff. ¶ 18.)
68
(Pl.’s Mem., Ex. 4, Fairfax Dep. at 79, 87.) However,
the RF Generator is not the only power source of electrical
energy to ENI’s plasma processing system. (See id. at 125-26,
132.)
69
(See id. at 85.)
70
(See id. at 86-87; Def.’s Stmt. ¶ 3.)
71
(See Pl.’s Mem., Ex. 4, Fairfax Dep. at 86.)
Court No. 05-00170 Page 19
Generators themselves constitute “conductors,”72 “current
regulators,”73 “chemical, vapor or deposition apparatus”74 or “high
tension generators.”75
ENI also presents evidence that RF Generators are not known in
the trade as “alternating current converters [and/or]
cycloconverters.”76 Alternating current converters or
cycloconverters, according to Fairfax, are viewed by the
engineering community as special devices effecting the conversion
from alternating current at one frequency to alternating current at
another frequency, without the intervening step of direct current
conversion.77 Fairfax further maintains that these machines only
72
(See id. at 40.)
73
(Id. at 91-92.)
74
(Id. at 86.)
75
(See id. at 97.)
76
(Id. at 93.) ENI’s expert identifies alternating current
converters and cycloconverters as two terms identifying the same
machine. (See id. at 94; Pl.’s Resp., Ex. 1, Fairfax Aff. ¶ 6.)
Fairfax cites electrical engineering authorities. See IEEE 100,
supra note 6, 265 (“cycloconverter[:] [a] converter using
controlled rectifier or transistor devices that has the
capability of adjusting the frequency and proportional voltage of
the output waveform to provide speed control of motors.”); Keith
H. Sueker, Power Electronics Design: A Practitioner’s Guide 220
(Newnes 2005) (cycloconverters “are a special case of motor
drives”; “[t]he only serious barrier to the application of
cycloconverters is that the output frequency must be less than
half of the input frequency to avoid asymmetry of output voltage
waveforms.”).
77
(Pl.’s Mem., Ex. 4, Fairfax Dep. at 93-94, 98-99, 109;
Pl.’s Resp., Ex. 1, Fairfax Aff. ¶ 6.)
Court No. 05-00170 Page 20
involve conversion of alternating current in the “mains” frequency
range.78
Finally, ENI presents evidence, and the Government agrees,
that RF Generators are not known in the electrical engineering
industry as “static converters.”79 Thus, this particular fact is
not at issue here.
STANDARD OF REVIEW
The court’s review of Customs’ classification decisions is
bifurcated. While “[t]he proper scope and meaning of a tariff
classification term is a question of law[,] . . . determining
whether the goods at issue fall within a particular tariff term as
properly construed is a question of fact.” Franklin v. United
States, 289 F.3d 753, 757 (Fed. Cir. 2002) (citations omitted). On
questions of law, a Customs’ classification decision is subject to
de novo review as to the meaning of the tariff provision, pursuant
to 28 U.S.C. § 2640, but may be accorded a “respect proportional to
its ‘power to persuade.’” United States v. Mead Corp., 533 U.S.
218, 235 (2001) (quoting Skidmore v. Swift & Co., 323 U.S. 134, 140
(1944)).
78
(Pl.’s Resp., Ex. 1, Fairfax Aff. ¶ 8.)
79
(See Def.’s Reply Mem. to Pl.’s Resp. to Def.’s Cross
Mot. (“Def.’s Reply”) 6 (“[The Government] do[es] not dispute
that the RF Generator is not known in the trade as a static
converter.”); see also Pl.’s Mem., Ex. 4, Fairfax Report at 9-10;
Pl.’s Mem., Ex. 3, Fairfax Aff. ¶¶ 8-14; Pl.’s Resp., Ex. 1,
Fairfax Aff. ¶¶ 5, 12-14.)
Court No. 05-00170 Page 21
In interpreting classification terms contained in the HTSUS,
the General Rules of Interpretation (“GRI”) to the HTSUS direct the
court’s de novo review. Specifically, GRI 1 states:
The table of contents, alphabetical index, and titles of
sections, chapters and sub-chapters are provided for ease
of reference only; for legal purposes, classification
shall be determined according to the terms of the
headings and any relative section or chapter notes and,
provided such headings or notes do not otherwise require,
according to the following provisions . . . .
This rule “is intended to make it quite clear that the terms of the
headings and any relative Section or Chapter Notes are paramount,
i.e., they are the first consideration in determining
classification.” 1 World Customs Org., Harmonized Commodity
Description & Coding Sys., Explanatory Notes 1 (3d ed. 2002)
(“Explanatory Notes”).80 Thus, interpretation of tariff headings,
and the court’s analysis, originate in the headings, subheadings,
section notes and chapter notes of the relevant parts of the HTSUS,
in this case, Section XVI including Chapters 84 and 85.
On factual issues, summary judgment is only appropriate “if
the pleadings, discovery and disclosure materials on file, and any
affidavits show that there is no genuine issue as to any material
fact and that the movant is entitled to judgment as a matter of
law.” USCIT R. 56(c) (emphasis added). Material issues only arise
80
The Explanatory Notes “do not constitute controlling
legislative history but nonetheless are intended to clarify the
scope of [the] HTSUS [] and to offer guidance” in its
interpretation. Mita Copystar America v. United States, 21 F.3d
1079, 1082 (1994).
Court No. 05-00170 Page 22
concerning “facts that might affect the outcome of the suit under
the governing law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
248 (1986). Consequently, in classification cases, genuine issues
of material fact only arise when there is a dispute over the use,
characteristics, or properties of the merchandise being classified,
see Brother Int’l Corp. v. United States, 26 CIT 867, 869, 248 F.
Supp. 2d 1224, 1226 (2002), or where commercial meaning is in
question. See Russell Stadelman & Co. v. United States, 242 F.3d
1044, 1048 (Fed. Cir. 2001).
DISCUSSION
I. The RF Generator as a Heading 8466 “Part” or “Accessory”
ENI’s main contention is that its RF Generators are parts of
a plasma processing system that manufactures semiconductors and
integrated circuits. The controlling section note, HTSUS Section
XVI Note 2, instructs that “parts of machines (not being parts of
the articles of heading 8484, 8544, 8545, 8546 or 8547)[81] are to
be classified according to the following rules”:
(a) Parts which are goods included in any of the headings
of chapter 84 or 85 (other than headings 8409, 8431,
8448, 8466, 8473, 8485, 8503, 8522, 8529, 8538 and 8548)
are in all cases to be classified in their respective
headings;
(b) Other parts, if suitable for use solely or
principally with a particular kind of machine, or with a
81
Headings 8484 (gaskets), 8544 (insulated wire), 8545
(articles of graphite or other carbon), 8546 (electric
insulators) and 8547 (insulating fittings for electrical
machines) are inapplicable to the subject merchandise.
Court No. 05-00170 Page 23
number of machines of the same heading (including a
machine of heading 8479 or 8543) are to be classified
with the machines of that kind or in heading 8409, 8431,
8448, 8466, 8473, 8503, 8522, 8529 or 8538 as
appropriate. However, parts which are equally suitable
for use principally with the goods of headings 8517 and
8525 to 8528 are to be classified in heading 8517;
(c) All other parts are to be classified in heading 8409,
8431, 8448, 8466, 8473, 8503, 8522, 8529 or 8538 as
appropriate or, failing that, in heading 8485 or 8548.
Thus, Note 2(b) establishes that parts are to be classified with
the goods with which they are principally used unless such parts
have a particular or respective heading as specified by Note 2(a),
except for the headings listed in the parentheses in Note 2(a)
which are themselves “parts” provisions. These “parts” headings
are specifically excluded from the scope of Note 2(a) by the force
of the “other than” provision in the parentheses, and thus these
parts are not “to be classified in their respective headings,” but
rather are to be classified, in accordance with 2(b), “with the
machines of that kind or heading.” All of these “other than”
provisions are clearly inapplicable to the subject merchandise,
save one - Heading 8466.82
82
Headings 8409 (parts of spark-ignition reciprocating or
rotary internal combustion piston engines or compression-ignition
internal combustion piston engines), 8431 (parts of certain
lifting or shoveling machinery), 8448 (auxiliary machinery for
certain textile manufacturing machines), 8473 (parts for
typewriters, calculators, automatic data processing machines and
similar), 8485 (“[m]achinery parts, not containing electrical
connectors, insulators, coils, contacts or other electrical
features, and not specified or included elsewhere” in chapter
84), 8503 (parts of electric motors, generators or rotary
converters), 8522 (parts of certain video or audio recording
Court No. 05-00170 Page 24
Subheading 8466.93.85 covers
Parts and accessories suitable for use solely or principally
with the machines of headings 8456 to 8465 . . . [:]
Other []: . . .
For machines of headings 8456 to 8461: . . .
Other: . . .
Other: . . .
. . . of machines of subheading
8456.91 [plasma etching systems for
“dry etching patterns on
semiconductor materials”]; . . . of
machines of subheading 8456.99.70
[plasma etching systems for
“stripping and cleaning
semiconductor wafers”].
As a result, if some or all of the RF Generators imported by ENI
are “suitable for use solely or principally” as parts of plasma
etching systems falling in Subheadings 8456.91 or 8456.99.70,
Section XVI Note 2(b) dictates that the RF Generators are to be
classified in Heading 8466 “as appropriate,” because Subheading
8466.93.85 includes “parts and accessories suitable for use solely
or principally with” plasma etching machines as identified in
Heading 8456.83
devices), 8538 (parts of electrical apparatus for switching or
protecting electrical circuits and similar) and 8548 (“[w]aste
and scrap” of certain cells and batteries) are not involved in
this case. Heading 8529, covering, among other things, parts of
radio transmission apparatus under Heading 8525, likewise is
inapplicable to the subject merchandise.
83
The Government argues that the court’s analysis should be
limited to Chapter 85, as the RF Generators are “electrical in
nature” and Chapter 84 only contains mechanical items “generally
not electrical in nature.” (Def.’s Mem. 18-19.) The Government
differentiates between “mechanical” and “electrical” machines
based upon language from the Chapter 84 Explanatory Notes:
Court No. 05-00170 Page 25
Subject to the provisions of the General
Explanatory Note to Section XVI, this Chapter covers
all machinery and mechanical appliances, and parts
thereof, not more specifically covered by Chapter 85 .
. . .
In general, Chapter 84 covers machinery and
mechanical apparatus and Chapter 85 electrical goods.
However, certain machines are specified in headings of
Chapter 85 . . . while Chapter 84 on the other hand
covers certain non-mechanical apparatus. . . .
It should also be noted that machinery and
apparatus of a kind covered by Chapter 84 remain in
this Chapter even if electric . . . .
3 Explanatory Notes 1393. While it is true that Chapter 84 does
indeed “in general” cover machinery, the Explanatory Note stops
short of dictating that electrical goods always fall in Chapter
85 and never fall into Chapter 84. In fact, the Explanatory Note
indicates that there is some overlap in the two categories.
Further, the Note is “[s]ubject to” the Section XVI Note 2(b),
which, as explained above, instructs that certain parts and
accessories “suitable for use solely or principally” with items
in Chapter 84 should either be classified with the item or in an
“appropriate” Heading for the item’s parts and accessories.
Finally, while it appears generally that Chapter 84 covers
mechanical and Chapter 85 covers electrical goods, GRI 1 again
states that “[t]he table of contents, alphabetical index, and
titles of sections, chapters and sub-chapters are provided for
ease of reference only . . . .”
The Government further argues that
Chapter 84 covers machines which operate by using
supplied electrical power/current. But they do not
produce or convert power/current. In other words, a
mechanical machine may receive power from a source such
as a motor, but this power merely assists in the
mechanical functioning of the machine . . . . Chapter
85, on the other hand, covers machines which produce or
convert power/current. . . . Here, the RF Generator[s]
are classifiable in Chapter 85, and excluded from
Chapter 84, because, the functioning of the RF
Generator is to “produce RF power.”
(Def.’s Resps. to the Court’s Questions in its Letter Dated May
Court No. 05-00170 Page 26
This analysis is not complete, however, because the HTSUS does
not define “part” or “accessory.” When the HTSUS does not define
a tariff term, the term receives its “common and popular meaning.”
E.M. Chems. v. United States, 920 F.2d 910, 913 (Fed. Cir. 1990).
To determine a term’s common meaning, a court may consult
“dictionaries, scientific authorities, and other reliable
information sources.” Warner-Lambert Co. v. United States, 407 F.3d
1207, 1209 (Fed. Cir. 2005). Specific definitions of “part” and
“accessory” have been used. See Rollerblade, Inc. v. United States,
282 F.3d 1349, 1352-53 (Fed. Cir. 2002). In Rollerblade, the
Federal Circuit determined that “dictionary definitions indicate
that an ‘accessory’ must bear a direct relationship to the primary
article that it accessorizes.” Id. at 1352. In other words, the
court noted, the “accessory” must directly act on or affect the
operation of the accessorized item. Id. at 1353.84 Likewise, a
13, 2009 11-12 (citations and footnote omitted) (emphasis in
original).) The court finds no support for this assertion in the
Headings or the Section, Chapter or Explanatory Notes.
As a consequence, the court does not find the Government’s
arguments persuasive and will not eliminate Chapter 84 from the
analysis.
84
The Explanatory Notes to Heading 8466 similarly describe
“accessories” as “subsidiary devices used in connection with
machine-tools, such as interchangeable devices which modify the
machine-tool so that it can perform a wider range of operations;
devices to increase precision; devices which perform a particular
service relative to the main function of the machine.” 3
Explanatory Notes 1564.
Court No. 05-00170 Page 27
“part” is “an essential element or constituent; integral portion
which can be separated, replaced, etc.” Rollerblade, 282 F.3d at
1352 (quoting Webster’s New World Dictionary 984 (3d College Ed.
1988)). Thus, a “part” also “must have a direct relationship to
the primary article, rather than to the general activity in which
the primary article is used.” Id. Accordingly, the Rollerblade
court determined that imported in-line roller skating protective
gear did not qualify as a “part” or an “accessory” to roller-
skates, because the protective gear did not affect the roller-
skates’ operation and instead the gear accessorized the “general
activity of roller skating.” Id. at 1352-54.
Unlike roller-skating protective gear, the RF Generators used
with plasma etching undisputedly act on and affect the operation of
plasma etching systems. Both parties agree that the subject
machines provide “RF power,” or significant wattage of power at
radio-frequency current, to the plasma chambers in order to create
RF waves which stimulate the plasma, thereby effecting the plasma
etching process. The court also notes that the Explanatory Note to
HTSUS Subheading 8456.91 describes ENI’s machines by name: “[d]ry
etchers generally incorporate one or more reaction chambers, pumps,
vacuum pumps, radio-frequency or microwave generators, gas-flow
control equipment and process control equipment.” 3 Explanatory
Notes 1543 (emphasis added). It thus appears to the court that, in
accordance with Subheading 8466.93.85, RF Generators used with
Court No. 05-00170 Page 28
plasma etching systems would qualify as a “part” or “accessory” of
such systems, and accordingly be classified therein. (The
“principal use” of the imported RF Generators is discussed below in
Section V.)85
As to the remaining RF Generators, i.e., those not used for
plasma etching, Note 2(a) requires additional analysis prior to the
application of Notes 2(b). Specifically, because the parentheses
exception in Note 2(a) is not applicable to ENI’s RF Generators
used principally as parts of PVD apparatus or CVD, Note 2(a)
instructs that these RF Generators are to be “classified in their
respective headings” where such headings exists. It follows that,
in accordance with Note 2(a), the court must determine whether
these other RF Generators are classifiable “in their respective
headings.” Although, like many of the Section XVI headings, HTSUS
Headings 8543 and 8479 include “parts thereof” within the heading
descriptions, this inclusion is “[s]ubject to the general
provisions regarding classification of parts,” i.e., Section XVI
Note 2(a). See 4 Explanatory Notes 1701; 3 Explanatory Notes 1597.
Thus the Section Note and the Explanatory Notes require an initial
review of other particular headings. Specifically, the Explanatory
85
ENI has not identified for the court which of the subject
machines are used principally with machines for plasma etching of
semiconductors. However, as is explained below, the court finds
that ENI has presented evidence to show the RF Generators’
“principal use” in manufacturing semiconductors and integrated
circuits. The court leaves it to the parties to determine which
of the RF Generators belong under Subheading 8466.93.85.
Court No. 05-00170 Page 29
Notes to Section XVI Note 2 state:
In general, parts which are suitable for use solely or
principally with particular machines or apparatus
(including those of heading 84.79 or 85.43), or with a
group of machines or apparatus falling in the same
heading, are classified in the same heading as those
machines or apparatus . . . . The above rules do not
apply to parts which in themselves constitute an article
covered by a heading of this Section . . . ; these are in
all cases classified in their own appropriate heading
even if specially designed to work as part of a specific
machine. This applies in particular to . . . Electrical
transformers and other machines and apparatus of heading
85.04.
3 Explanatory Notes 1385-86 (emphasis added). The court therefore
must determine whether any particular heading in Section XVI
applies specifically to these RF Generators themselves. If such
headings do not exist, Note 2(b) then instructs that these parts
are to be classified in the heading with the particular machine for
which they have such a dedicated principal use.
II. Heading 8504 (“Static Converters”)
As noted above, it is the Government’s position that the RF
Generators fall under Heading 8504 as, eo nomine, “static
converters.” Specifically, Subheading 8504.40.95 provides:
Electrical transformers, static converters (for example,
rectifiers) and inductors[86] . . . [:]
Static converters: . . .
Other
ENI claims that the tariff term “static converter” is not
broad enough to include RF Generators “by any definition or common
86
No party claims that RF Generators may be classified as
“Electrical transformers” or “inductors.”
Court No. 05-00170 Page 30
usage in the trade.” (Pl.’s Mem. 13 (emphasis added).)87
Furthermore, ENI argues that the RF Generator contains different
components and performs different functions than a static
converter.
For the reasons explained below, the court declines to apply
the broad definition of “static converter” advocated by the
Government, and instead holds that, in accordance with the IEEE 100
definition and the Explanatory Notes, HTSUS Heading 8504 “static
converters” does not extend to machines that produce fixed-
frequency alternating current to fixed-frequency alternating
current of another frequency via conversion to direct current.
A. Common Meaning of “Static Converter”
As explained above, “[w]hen a tariff term is not defined in
either the HTSUS or its legislative history, the term’s correct
meaning is presumed to be its common meaning in the absence of
evidence to the contrary.” Timber Prods. Co. v. United States, 515
F.3d 1213, 1219 (Fed. Cir. 2008) (citing Rohm & Haas Co. v. United
States, 727 F.2d 1095, 1097 (Fed. Cir. 1984)). The HTSUS does not
define the term “static converter,” and therefore, once again, the
court turns to “dictionaries, scientific authorities, and other
87
The Government agrees with ENI on this point that the RF
Generator is not known in the trade as a static converter.
(Def.’s Reply 6, 7-8.) However, the Government argues, as
explained below, that the Explanatory Notes nevertheless
demonstrate a Congressional intent to have a broader definition
of “static converter” than that proffered by ENI as known in the
electrical engineering industry.
Court No. 05-00170 Page 31
reliable information sources.” Warner-Lambert Co., 407 F.3d at
1209.
No standard dictionaries define the term “static converter,”
but one authoritative technical dictionary,88 IEEE 100, defines
static converter as “[a] unit that employs solid state devices[89]
such as semiconductor rectifiers or controlled rectifiers
(thyristors), gated power transistors, electron tubes, or magnetic
amplifiers to change ac power to dc power, dc power to ac power, or
fixed frequency ac power[90] to variable frequency ac power.[91]”
IEEE 100, supra note 6, 1103. Because the IEEE 100 definition
88
The Federal Circuit has affirmed this Court’s use of
scientific and technical dictionaries to determine the common
meaning of technical terms. See Russell Stadelman & Co. v. United
States, 242 F.3d 1044, 1049-50 (Fed. Cir. 2001).
89
Devices are “solid state” if they are “[b]ased on or
consisting chiefly or exclusively of semiconducting materials,
components, and related devices.” American Heritage Dictionary of
the English Language 1715 (3d ed. 1996). Accord XV Oxford English
Dictionary, supra note 18, 974 (“utilizing the electronic
properties of solids (as in transistors and other semiconductor
devices, in contrast to the partial vacuum of valves)”);
Illustrated Dictionary of Electronics, supra note 3, 641
(“[p]ertaining to devices and circuits in which the flow of
charge carriers (electrons and holes) is controlled in specially
prepared blocks, wafers, rods, or disks of solid materials.
Semiconductor devices, such as transistors and integrated
circuits, are solid-state components”).
90
“Fixed frequency” connotes alternating current “preset to
operate on one frequency.” See Illustrated Dictionary of
Electronics, supra note 3, 286.
91
“Variable frequency” current is “adjustable” by the user.
See Michael F. Hordeski, New Technologies for Energy Efficiency
136 (2003).
Court No. 05-00170 Page 32
provides a discrete list of devices identified by function, the
canon of statutory construction “expressio unius est exclusio
alterius” – the expression of one thing is the exclusion of another
- applies. See Nissan Motor Mfg. Corp. v. United States, 884 F.2d
1375, 1377 (Fed. Cir. 1989). Thus, “static converter” excludes
machines with functions not listed in the IEEE 100 definition, for
example, machines that convert fixed-frequency alternating current
to fixed-frequency alternating current of another frequency.
B. Explanatory Notes for HTSUS Heading 8504
In contrast to the Government’s arguments, the Explanatory
Notes for HTSUS Heading 8504 further limit rather than expand the
reach of the term “static converter.” The relevant portions read:
(II) ELECTRICAL STATIC CONVERTERS
The apparatus of this group are used to convert
electrical energy in order to adapt it for further use.
They incorporate converting elements (e.g., valves) of
different types. They may also incorporate various
auxiliary devices (e.g., transformers, induction coils,
resistors, command regulators, etc.). Their operation is
based on the principle that the converting elements act
alternately as conductors and non-conductors.
The fact that these apparatus often incorporate
auxiliary circuits to regulate the voltage of the
emerging current does not affect their classification in
this group, nor does the fact that they are sometimes
referred to as voltage or current regulators.
This group includes:
(A) Rectifiers by which alternating current (single
or polyphase) is converted to direct current,
generally accompanied by a voltage change.
(B) Inverters by which direct current is converted
Court No. 05-00170 Page 33
to alternating current.
(C) Alternating current converters and cycle
converters by which alternating current (single or
polyphase) is converted to a different frequency or
voltage.
(D) Direct current converters by which direct
current is converted to a different voltage.
4 Explanatory Notes 1626 (emphasis omitted).
Relying on the first sentence of these Explanatory Notes, the
Government defends its classification of the RF Generator as a
“static converter” that is an “apparatus . . . used to convert
electrical energy in order to adapt it for further use.” Id. ENI
takes issue with this broad definition, as “this sentence is so
general that it ‘describes any apparatus that uses electric power
in any form.’” (Pl.’s Mem. 15 (quoting id., Ex. 4 Fairfax Dep. at
88-89).)
The court agrees with ENI that reliance on such a broad
definition could be over-inclusive; the issue, however, is resolved
by sections (A) through (D). Because the Explanatory Notes use the
word “includes,” established case law requires application of the
doctrine of “expressio unius est exclusio alterius” to limit the
broad definition to the four enumerated examples (A) - (D). See
Bausch & Lomb, Inc. v. United States, 148 F.3d 1363, 1367 (Fed.
Cir. 1998) (interpreting the phrase “including brushes constituting
parts of machines, appliance or vehicles” to limit the definition
of “brush” in Heading 9603 to cover only brushes that are part of
Court No. 05-00170 Page 34
a machine, appliance or vehicle); see also Cummins Inc. v. United
States, 29 CIT 525, 533-34, 377 F. Supp. 2d 1365, 1373 (2005),
aff’d, 454 F.3d 1361 (Fed. Cir. 2006).92
In accordance with Bausch & Lomb and Cummins, to give HTSUS
Heading 8504 meaning, the word “includes” must qualify the broader
definition of “static converter.” As a consequence, in order for
a machine to fit the “static converter” rubric, said machine must
be a (A) rectifier,93 (B) inverter,94 (C) alternating current
converter/cycle converter or (D) direct current converter.95
Because the RF Generator accepts input of alternating current
at a mains frequency and subsequently generates current in radio
frequencies, the Government argues that the RF Generator “meets the
term of an ‘alternating current converter’ as defined by the
92
At oral argument, the Government relied, in part, on the
Federal Circuit opinion in Midwest of Cannon Falls, Inc. v.
United States, 122 F.3d 1423, 1429 (Fed Cir. 1997) (“Although the
examples in the Explanatory Notes are probative and sometimes
illuminating, we will not employ their limiting characteristics
to narrow the language of the classification heading itself.”).
Here, however, unlike Midwest of Cannon Falls, the court is not
narrowing the language of the classification heading, but is
applying the common definition of that language; the Explanatory
Notes support that definition.
93
A rectifier is a device that converts alternating current
to direct current. See supra note 20.
94
An “inverter” is a “machine, device or system that
changes direct-current power to alternating-current power.” IEEE
100, supra note 6, 588.
95
A “direct current converter” is a “converter for changing
dc power at a given voltage to dc power at a higher or lower
voltage.” IEEE 100, supra note 6, 312.
Court No. 05-00170 Page 35
relevant Explanatory Note.” (Def.’s Mem. 14.) However, ENI
disagrees, arguing that “alternating current converters” or “cyclo
converters” have circumscribed technical definitions. (Pl.’s Mem.
16 (quoting id., Ex. 4, Fairfax Dep. at 93-94 (“[w]hat’s in C,
alternating current converter and cycle converters [i.e., types of
‘static converters’], those are terms of art [to ‘power
engineers’]. They refer to a specific kind of a machine where AC of
one frequency is converted to AC of another frequency with no DC in
between.”)).)
The court again agrees with ENI. A “cycle converter” is also
known as a “cycloconverter.” See, e.g., S.K. Bhattacharya, et al.,
Industrial Electronics and Control 250 (1995). Although
definitions for “cycle converter” are scarce, locatable definitions
for “cycloconverter” all identify cycloconverters as machines that
directly convert96 alternating current to alternating current of
96
See The Electrical Engineering Handbook: Electronics,
Power Electronics, Optoelectronics, Microwaves, Electromagnetics,
and Radar 9-11 (Richard C. Dorf ed., 3d ed., 2006)
(“Cycloconverters are direct ac-to-ac frequency changers. The
term direct conversion means that the energy does not appear in
any form other than the ac input or ac output. The output
frequency is lower than the input frequency and is generally an
integral multiple of the input frequency.”) (emphasis in
original); Bhattacharya, supra, 250 (“A cycloconverter [or] cycle
converter[] is a device which directly converts one level of
cycle rate (i.e., frequency) into another level without using any
intermedia[te] d.c. link. In other words . . . a cycloconverter
changes a.c. of one frequency into a.c. of another frequency. . .
. These converters are basically meant for producing low
frequency a.c. voltage.”).
Court No. 05-00170 Page 36
another frequency, usually lower,97 for use particularly in
combination with motors.98
Definitions for the term “alternating current converter” are
similarly difficult to locate. According to Fairfax, the terms
“alternating current converter,” “cycle converter” and
“cycloconverter” are all synonymous. (See Pl.’s Mem., Ex. 4,
Fairfax Dep. at 94.) News articles and other available
publications primarily refer to “alternating current converters”
for use to convert direct current power to alternating current
97
See McGraw-Hill Dictionary of Scientific and Technical
Terms 535 (6th ed. 2003) (a cycloconverter is “[a] device that
produces an alternating current of constant or precisely
controllable frequency from variable-frequency alternating-
current input, with the output frequency usually one-third or
less of the input frequency”); accord Academic Press Dictionary
of Science and Technology 573 (Christopher Morris ed. 1992);
Dictionary of Electrical and Computer Engineering 133 (2003);
Rudolf F. Graf, Modern Dictionary of Electronics 134 (4th ed.
1972).
98
See IEEE 100, supra note 3, 265 (a cycloconverter is “[a]
converter using controlled rectifier or transistor devices that
has the capability of adjusting the frequency and proportional
voltage of the output waveform to provide speed control of
motors”); Webster’s Third New International Dictionary of the
English Language - Unabridged 564 (2002) (“an electronic device
for controlling the speed of a synchronous motor by supplying it
with alternating current of grid-controlled frequency”); Sueker,
supra note 76, 220 (cycloconverters “are a special case of motor
drives, since they can also be used in fixed-frequency
applications and can supply high overload currents for protective
relay coordination in large installations. They are currently
used to convert 60 to 25 Hz for the catenary system of Amtrak in
the New York to Boston corridor. Another use is for ship
propulsion . . . . They convert a fixed generator frequency to a
variable frequency for the propeller synchronous motors.”).
Court No. 05-00170 Page 37
power.99 Older publications equate alternating current converters
to rectifiers, that is, devices that convert alternating current to
direct current.100
Any possible factual inconsistency in these definitions aside,
the Government has not provided the court with any contrary
99
See, e.g., EDP Renováveis prices near the bottom,
Euroweek, June 6, 2008, available at LEXIS (last visited Aug. 28,
2009) (SMA Solar “is the world’s biggest maker of
alternating-current converters, which are used to convert the
direct current power generated through wind and solar power
plants into alternating current for general use”). See also
Kyocera Solar Modules Installed on European Court of Justice,
Journal of Technology & Science, May 31, 2009, at 1720, available
at LEXIS (last visited Aug. 28, 2009) (identifying a Kyocera
module, that converts solar energy in direct current form into
alternating current for use in the mains grid, as an “alternating
current converter”); German solar technology company SMA eyes IPO
- report, Thomson Financial News Super Focus, Mar. 26, 2008,
available at LEXIS (last visited Aug. 28, 2009); Brunsbuettel
nuclear plant to halt briefly, no date, Reuters News, Sept. 7,
2006, available at LEXIS (last visited Aug. 28, 2009).
100
See, e.g., Albert L. Clough, A Dictionary of Automobile
Terms 251 (Horseless Age Co. 1913) (listing “alternating current
converter” as a synonym of “rectifier”); Charging Vehicle
Batteries from Alternating Mains, Horseless Age, May 16, 1906, at
690 (identifying an “alternating current converter” as a device
which creates direct current from alternating current from the
mains in order to charge automobile batteries); George Cutter,
The Continuous Current, Limited vs. The Alternating Current,
Unlimited, The Electrical Engineer, July 1888, at 309-11
(identifying “alternating current converter” as a device to
convert alternating current from the mains into direct current
for use with household and industrial devices).
The court has located one publication that equates the term
“alternating current converter” with the term “AC-AC converter”
in reference to switched mode power supplies. See Semiconductors:
Technical Information, Technologies and Characteristic Data 134
(2d ed. 2004). However, the reference does not conflict with the
more narrow use of “alternating current converter” found by the
court, and thus does not alter the court’s conclusion.
Court No. 05-00170 Page 38
definitions of these terms, nor has it offered the court any
evidence to dispute ENI’s expert’s assertions that (1) “alternating
current converters” are synonymous with “cycle converters” and (2)
both terms have a technical meaning that would exclude machines
that convert alternating current to direct current and back again.
While the Explanatory Notes do instruct that alternating
current converters convert “alternating current (single or
polyphase) . . . to a different frequency or voltage,” 4
Explanatory Notes 1626, the history and context of the Explanatory
Notes counsel in favor of a limited reading of this language.
Specifically, the predecessor to the World Customs Organization
Harmonized Commodity Description and Coding System Explanatory
Notes, the Explanatory Notes to the Brussels Nomenclature,
delineate “static converters, rectifiers and rectifying apparatus”
to “include” apparatus based on mercury arc rectifiers, diode
rectifiers metal and crystal rectifiers, electrolytic rectifiers,
battery chargers, high tension generators, vibrating contact
rectifiers and converters and synchronous mechanical contact
rectifiers. 3 Customs Co-Operation Council, Explanatory Notes to
the Brussels Nomenclature 1396-98 (2d ed. 1966); 3 Customs Co-
Operation Council, Explanatory Notes to the Brussels Nomenclature
927-28 (1955). Noticeably present in these Notes is the term
“static converter” but noticeably absent are any machines remotely
resembling a machine that converts alternating current to direct
Court No. 05-00170 Page 39
current to a higher frequency alternating current.
The Government cites to NEC Electronics, Inc. v. United
States, 21 CIT 327 (1997), aff’d, 144 F.3d 788 (Fed Cir. 1998),
which would, according to the Government, support the use of a
broad definition contained in Explanatory Notes over the use of a
more limited common commercial usage, the former being more
persuasive evidence of legislative intent. NEC held that the
meaning of a tariff term may be “broader in scope than its
commercial usage.” NEC, 21 CIT at 331. Thus, the Government argues
that “this Court may rely upon the Explanatory Notes to find the RF
Generator in this case to be classified under heading 8504, even if
the commercial and scientific communities are of a different view.”
(Def.’s Mem. 16.)
However, as explained above, the categories (A) through (D)
limit the broad definition provided by the Explanatory Notes. In
addition, the language and context of the Explanatory Notes, as
well as the common usage of terms therein, do not support the broad
categorization of “static converter” advocated by the Government.
As such, the court holds that the term “static converter” in
Heading 8504 does not include machines that convert fixed-frequency
alternating current to fixed-frequency alternating current at a
higher frequency via conversion to direct current.
Court No. 05-00170 Page 40
III. Headings 8479 and 8543
A direct comparison of Headings 8479 and 8543, applying GRI 1,
also does not resolve this dispute. These two headings are nearly
identical, the only difference being that Heading 8479101 applies to
“Machines” while Heading 8543102 covers “Electrical machines.” But
any common definition of “Electrical machine” is not sufficient to
provide a clear indication of the appropriate placement of RF
Generators. This is because the common meaning of “electrical,” in
the context of word combinations such as “electrical machine,” is
having electricity as the “controlling power,” V Oxford English
Dictionary, supra note 18, 118, 120; it is clear that both chapters
84 and 85 include machines powered, and thereby controlled, by
electricity. Moreover, both headings include machines and
apparatus “having individual functions, not specified or included
elsewhere in this chapter.” Machines for processing semiconductor
materials are “specified or included” elsewhere in both chapters,
specifically in Subheading 8479.89.84 and Subheading 8543.89.10, as
discussed below, as well as in Subheading 8466.93.85, as discussed
101
Heading 8479 covers:
Machines and mechanical appliances having individual
functions, not specified or included elsewhere in this
chapter; parts thereof [] . . . .
102
Heading 8543 covers:
Electrical machines and apparatus, having individual
functions, not specified or included elsewhere in this
chapter; parts thereof [] . . . .
Court No. 05-00170 Page 41
above.
The Government objects to the use of Subheading 8479.89.84
insisting that, even if the RF Generator does not fit within
Heading 8504, the RF Generator, by itself, cannot be considered a
machine that processes semiconductors; the RF Generator may only be
considered a part of such a system.103
However, ENI responds, and the court agrees, that the tariff
provision at issue, referencing “machines for processing of”
semiconductors or integrated circuits, does not necessarily require
that the subject merchandise “in and of themselves” be capable of
manufacturing semiconductors or integrated circuits. The Section
XVI Notes indicate that “parts” of machines for processing
semiconductors are included within the Heading. See HTSUS Section
XVI Note 2(b). As previously noted, the RF Generator qualifies as
a “part” of a plasma processing system.104
103
The Government analogizes the RF Generator to an electric
motor incorporated into a grinding machine:
The motor itself does not perform any grinding
operation. It merely provides the power which enables
the machine to grind the material. The motor alone
would not be classified as a grinding machine. By
analogy, while the RF Generator provides power to the
system which manufactures semiconductor devices, alone,
it cannot do it and would not be considered a machine
for the processing of semiconductor materials.
(Def.’s Mem. 21 n.10.)
104
ENI further argues that “the history and development of
heading 8479 demonstrates that the [subject merchandise] belong
to a class or kind of merchandise correctly classified in that
Court No. 05-00170 Page 42
Furthermore, the Government’s reading of Subheading 8479.89.84
conflicts with its stance on plasma chambers and would read out of
Heading 8479 plasma chambers for processing semiconductors through
chemical vapor deposition, which the Government has argued fall
under Subheading 8479.89.84. As ENI notes, plasma chambers “in and
of themselves” cannot process semiconductors or integrated circuits
without the radio frequency power provided by the RF Generator.
The Government’s argument on this point is therefore artificial at
best and the court declines to adopt it.
provision.” (Pl.’s Mem. 13). In support, ENI references the
consolidation of semiconductor production devices into Heading
8486. Effective 2007, note 2 to HTSUS chapter 84 was amended
from
a machine or appliance which answers to a description
in one or more of the headings 8401 to 8424 and at the
same time to a description in one or more of the
headings 8425 to 8480 is to be classified under the
appropriate heading of the former group and not the
latter.
to
a machine or appliance which answers to a description
in one or more of the headings 8401 to 8424, or heading
8486 and at the same time to a description in one or
more of the headings 8425 to 8480 is to be classified
under the appropriate heading of the former group or
under heading 8486, as the case may be, and not the
latter group.
See Modifications to the Harmonized Tariff Schedule of the United
States Under Section 1206 of the Omnibus Trade and
Competitiveness Act of 1988, USITC Pub. 3898, Annex 1 ¶ 272 (Dec.
2006), available at
http://www.usitc.gov/tariff_affairs/hts_documents/pub3898.pdf
(last visited Aug. 28, 2009). The Government responds that
Heading 8486 is irrelevant, as it postdates this litigation. As
the court has read Heading 8479 to include “parts,” it need not
address this issue.
Court No. 05-00170 Page 43
IV. Classification of the RF Generators
The court now turns to the proper classification of the RF
Generators. As noted above, whether the subject imports properly
fall within the scope of the possible headings is a question of
fact. Millenium Lumber Distrib. Ltd. v. United States, 558 F.3d
1326, 1328 (Fed. Cir. 2009) (citation omitted). “Because Customs’
classification decisions are presumed correct, [ENI] bears the
burden of proving otherwise.” Id. (citation omitted). On these
factual issues, both parties maintain that there is no issue of
material fact remaining for trial and that this court may decide
this case on the record before it.
The court addresses the application of each proffered
subheading in turn.
A. Subheading 8504.40.95
For the reasons explained above, the court must deny summary
judgment to the Government as to Heading 8504. It is undisputed
that the RF Generators convert its input, i.e., alternating current
at mains frequency, into direct current, and then convert the
direct current into alternating current with a factory preset
frequency of 13.56 MHz. The scope of Heading 8504 excludes
machines with the RF Generators’ particular function, that is, to
convert fixed-frequency alternating current to fixed-frequency
alternating current at another frequency via direct current. As a
consequence, the RF Generators are not properly classifiable under
Court No. 05-00170 Page 44
HTSUS Heading 8504.
B. Subheading 8479.89.84
As noted above, ENI argues specifically that the proper
designation for its RF Generators is “[m]achines for processing of
semiconductor materials” in HTSUS Subheading 8479.89.84. ENI
argues that its RF Generators are properly classified under HTSUS
Subheading 8479.89.84 because they are “principally” used as
“machines for processing semiconductor of materials,” “machines
for [the] production of . . . electronic integrated circuits” and
“chemical vapor deposition (CVD) apparatus.” (Compl. ¶¶ 6-10; Pl.’s
Mem. 13, 18-23.) ENI maintains that it has presented evidence to
show that its merchandise satisfies all the factors listed in
United States v. Carborundum Co., demonstrating that the
merchandise falls in the same “class or kind” of merchandise used
to process semiconductors. 63 CCPA 98, 102, C.A.D. 1172, 536 F.2d
373, 377 (1976) (“Factors which have been considered by courts to
be pertinent in determining whether imported merchandise falls
within a particular class or kind include the general physical
characteristics of the merchandise, the expectation of the ultimate
purchasers, the channels, class or kind of trade in which the
merchandise moves, the environment of the sale (i.e., accompanying
accessories and the manner in which the merchandise is advertised
and displayed), the use, if any, in the same manner as merchandise
which defines the class, the economic practicality of so using the
Court No. 05-00170 Page 45
import, [and] the recognition in the trade of this use.
Susceptibility, capability, adequacy, or adaptability of the import
to the common use of the class is not controlling.”) (internal
citations omitted).
The Carborundum analysis, in this case, is supported by
application of HTSUS Additional U.S. Rule of Interpretation (“ARI”)
1 (“In the absence of special language or context which otherwise
requires –- (a) a tariff classification controlled by use (other
than actual use) is to be determined in accordance with the use in
the United States at, or immediately prior to, the date of
importation, of goods of that class or kind to which the imported
goods belong, and the controlling use is the principal use”), and
HTSUS Chapter 84 Note 7 (“A machine which is used for more than one
purpose is, for the purposes of classification, to be treated as if
its principal purpose were its sole purpose.”). As explained in
HTSUS ARI 1, an item’s use is determined by the “class or kind to
which the imported good[] belong[s],” and the “principal” use
controls. HTSUS ARI 1. An item’s “principal use” is “the use
‘which exceeds any other single use’ of the article.” Outer Circle
Prods. v. United States, __ CIT __, __, 602 F. Supp. 2d 1294, 1307
(2009)) (quoting Lenox Collections v. United States, 20 CIT 194,
196 (1996)). See also Pillsbury Co. v. United States, 431 F.3d
1377, 1380 (Fed. Cir. 2005) (“Merchandise must be classified ‘in
the condition in which it is imported.’” (quoting United States v.
Court No. 05-00170 Page 46
Citroen, 223 U.S. 407, 415 (1912))).
Following the factors enunciated in Carborundum, 63 CCPA at
102, 536 F.2d at 377, Carborundum’s progeny, ARI 1 and Chapter 84
Note 7, the subject RF Generators fall within a “class or kind” of
merchandise whose “principal use” is to process semiconductors
through plasma etching, chemical vapor deposition or physical vapor
deposition. In support of its motion, ENI has presented undisputed
evidence that the end-users of the vast majority of its RF
Generators operate these devices with machines that process
semiconductors and integrated circuits. ENI has also proffered
undisputed evidence, including both affidavits and expert
testimony, that the subject machines are designed and used to
operate with semiconductor-industry specific safety standards to
provide power in the manner required for such a purpose. Such
evidence, if unrebutted by the Government, is sufficient to support
a summary judgment motion under USCIT R. 56. See A.D. Sutton &
Sons v. United States, No. 03-00510, 2008 WL 2751236, at *4-5, 2008
Ct. Intl. Trade LEXIS 76, at *14-17 (CIT July 16, 2008).
But despite extensive time for discovery, the Government has
presented this court with scant rebuttal evidence. Although the
Government has cited evidence that ENI advertises its RF Generators
for other uses besides plasma processing of semiconductors, this
one fact alone is insufficient to raise an issue of material fact
for trial as to “principal use.” Furthermore, the Government’s
Court No. 05-00170 Page 47
insistence that RF Generators can be used for plasma processing
applications other than production of semiconductors is unavailing,
as this assertion does not, itself, rebut ENI’s evidence that the
RF Generators are “principally” used for semiconductor-specific
plasma processing applications. Therefore, drawing all factual
inferences in favor of the Government, see Harlow v. Fitzgerald,
457 U.S. 800, 816 n.26 (1982), the court must grant ENI summary
judgment on the issue of principal use.
The court, however, does not wholly grant ENI’s motion for
summary judgment as to Subheading 8479.89.84. As the court
explained above, RF Generators imported for principal use with
plasma etching devices, for processing of semiconductors, belong
under Subheading 8466.93.85. See supra. Also, because Subheading
8543.90.10 is more specific than Subheading 8479.89.84, RF
Generators imported for principal use with physical vapor
deposition apparatus for processing of semiconductors fall in
Subheading 8543.90.10, rather than Subheading 8479.89.84. See GRI
6 (“For legal purposes, the classification of goods in the
subheadings of a heading shall be determined according to the terms
of those subheadings and any related subheading notes and, mutatis
mutandis, to the above rules, on the understanding that only
subheadings at the same level are comparable. . . .”), 3(a)(“The
heading which provides the most specific description shall be
preferred to headings providing a more general description. . .
Court No. 05-00170 Page 48
.”). Because there is no more specific subheading, RF Generators
imported for principal use with chemical vapor deposition apparatus
for semiconductor processing should be categorized under Subheading
8479.89.84.
Furthermore, RF Generators imported for principal use in
plasma processing of semiconductors, without specific indication as
to their use in CVD, PVD, or plasma etching, fall under Subheading
8479.89.84, as there is no more specific subheading for these RF
Generators.
Finally, merchandise imported under all three of the
aforementioned Subheadings enters the U.S. free of duty.
Accordingly, the court directs the parties to confer in order to
determine the appropriate subheadings for the various imports of
ENI’s RF Generators,105 and to prepare an appropriate judgment
reflecting those subheadings.
105
As the court finds that the merchandise is properly
classified under Subheadings 8479.89.84, 8466.93.85 and
8543.90.10, it denies summary judgment as to the Government’s
claim for classification under the more general basket Subheading
8543.89.96. See GRI 3(a), 6.
Court No. 05-00170 Page 49
CONCLUSION
Upon consideration of ENI’s motion for summary judgment and
the Government’s cross-motion for summary judgment, the court
hereby:
• DENIES the Government’s cross-motion for summary judgment in
its entirety.
• GRANTS ENI’s motion for summary judgment as to “principal use”
of the RF Generators as machines for processing semiconductors
through plasma etching, physical vapor deposition or chemical
vapor deposition, see HTSUS Subheading 8543.89.10 (PVD), HTSUS
Subheading 8479.89.84 (CVD), and HTSUS Subheading 8456.99.70
(plasma etching), but otherwise DENIES ENI’s motion.
The parties’ proposed judgment shall be submitted by November
30, 2009.
It is SO ORDERED.
/s/
Donald C. Pogue, Judge
Dated: September 1, 2009
New York, New York