Eni Technology Inc. v. United States

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