United States Court of Appeals for the Federal Circuit 

2007-1430 

AGFA CORPORATION, 

Plaintiff-Appellant, 

v. 

UNITED STATES, 

 Defendant-Appellee. 

Kenneth G. Weigel, Alston & Bird LLP, of Washington, DC, argued for plaintiffappellant. With him on the brief were Paul F. Brinkman and Jeffrey M. Schwartz. 

Mikki Graves Walser, Senior Trial Counsel, International Trade Field Office, 

Commercial Litigation Branch, Civil Division, United States Department of Justice, of 

New York, New York, argued for defendant-appellee. With her on the brief were 

Jeanne E. Davidson, Director, of Washington, DC, and Barbara S. Williams, Attorneyin-Charge, of New York, New York. Of counsel on the brief was Michael W. Heydrich, 

Office of Assistant Chief Counsel, International Trade Litigation, United States Customs 

and Border Protection, of New York, New York. 

Appealed from: United States Court of International Trade 

Chief Judge Jane A. Restani 

 
United States Court of Appeals for the Federal Circuit 

2007-1430 

AGFA CORPORATION, 

 Plaintiff-Appellant, 

v. 

UNITED STATES, 

 Defendant-Appellee. 

Appeal from the United States Court of International Trade in Case No. 05-00352, Chief 

Judge Jane A. Restani. 

_______________________ 

DECIDED: March 24, 2008 

_______________________ 

Before LOURIE, Circuit Judge, CLEVENGER, Senior Circuit Judge, and PROST, Circuit 

Judge. 

LOURIE, Circuit Judge. 

Agfa Corporation (“Agfa”) appeals from the decision of the United States Court of 

International Trade granting final judgment in favor of the United States and holding that 

United States Customs and Border Patrol (“Customs”) properly classified imported 

metal plates coated with a photosensitive emulsion under subheading 3701.30.00 of the 

Harmonized Tariff Schedule of the United States (“HTSUS”). Because the Court of 

International Trade correctly classified the merchandise, we affirm. 
BACKGROUND 

The subject merchandise consists of thin planed and grained aluminum sheets 

coated on one side with a photosensitive polymer layer and used for offset lithographic 

printing. All of the subject sheets have at least two sides measuring greater than 255 

mm. In order to prepare the sheets for printing, a machine uses light, typically in the 

form of a laser, to either harden the areas of the polymer layer corresponding to the 

printed image or soften the areas of the polymer layer not corresponding to the image, 

depending on the specific polymer in use. The sheet is then washed to remove the 

softer, non-image areas. The prepared sheet is then wrapped around a cylinder within 

the printing press. During operation of the printing press, the sheet is first coated by a 

fine film of a water-based solution that adheres to the exposed aluminum and then by 

ink that adheres only to the remaining polymer. The oil-based ink and water solution do 

not mix. The ink transfers from the sheet to a blanket cylinder and then from the blanket 

cylinder to the paper. 

At issue are twenty-six importations, consisting of five specific models, of the 

subject merchandise entered into the United States by Agfa between September 29, 

2003, and November 2, 2003. Customs classified the merchandise under subheading 

3701.30.00, covering “Photographic plates and film in the flat, sensitized, unexposed, of 

any material other than paper, paperboard or textiles . . . : Other plates and film, with 

any side exceeding 255 mm” with a 3.7% ad valorem duty. Agfa filed a protest of 

Customs’ decision that Customs subsequently denied. 

On June 8, 2005, Agfa filed an action in the Court of International Trade 

protesting the final decision of Customs and asserting that the subject merchandise 

2007-1430 -2-
was properly classifiable under subheading 8442.50.10, covering “printing . . . plates 

. . . : Printing . . . plates . . . : Plates,” and was thus duty free. 

The Court of International Trade held that the plates were prima facie 

classifiable under heading 3701, but not under heading 8442, and that Customs 

therefore properly classified the merchandise under subheading 3701.30.00. The court 

stated that there was no dispute between the parties that the plates, as imported, were 

flat, sensitized, and unexposed and had at least two sides measuring greater than 255 

mm. The court determined that the specific definition of “photographic” in Note 2 to 

Chapter 37 counseled against finding “photographic plate” to be a term of art. The 

court also determined that Agfa’s proposed definition of “photographic plate,” requiring 

a glass substrate and allegedly based on commercial understanding of the term, was 

contrary to the plain language of heading 3701 stating that “photographic plates” may 

be “of any material other than paper, paperboard or textiles.” The court then held that 

the imported plates met the Note 2 definition of “photographic” because the use of a 

laser to create the desired image in the polymer layer meant that light was used to 

indirectly create the printed image. The court also observed that the Explanatory 

Notes for heading 3701 indicate that “photographic plates” may be made from a variety 

of materials and used in photomechanical processes. The court determined that 

heading 8442, in contrast, includes no reference to photosensitive materials, and the 

Explanatory Notes for heading 8442 specifically exclude plates coated with a 

photographic emulsion. 

Agfa timely appealed to this court. We have jurisdiction pursuant to 28 U.S.C. 

§ 1295(a)(5). 

2007-1430 -3-
DISCUSSION 

“The ultimate issue as to whether particular imported merchandise has been 

classified under an appropriate tariff provision is a question of law which we review de

novo.” Sports Graphics, Inc. v. United States, 24 F.3d 1390, 1391 (Fed. Cir. 1994). A 

classification decision involves two underlying steps: (1) determining the proper 

meaning of the tariff provisions, which is a question of law; and (2) determining which 

heading the particular merchandise falls within, which is a question of fact. Cummins 

Inc. v. United States, 454 F.3d 1361, 1363 (Fed. Cir. 2006) 

Agfa argues that the Court of International Trade erred and that the imported 

plates should be classified under subheading 8442.50.10. Agfa states that because the 

merchandise is used for printing, and sold and referred to in the trade as printing plates, 

it falls under the plain language of heading 8442 for “printing . . . plates.” Agfa also 

argues that the court erred in giving undue weight to the Explanatory Notes for heading 

8442 because the Notes are not binding and the specific Note at issue is inconsistent 

with the plain language of heading 8442. Agfa adds that, unlike “photographic,” the 

term “photographic plate” is not defined in the notes to Chapter 37, and the term cannot 

be broadened to capture merchandise clearly recited in another heading. Agfa argues 

that the court should therefore have relied on the commercial understanding of the term 

“photographic plates.” Finally, Agfa argues that even if the merchandise is prima facie 

classifiable under both heading 3701 and 8442, heading 8442 prevails under General 

Rule of Interpretation 3 as the more specific provision. 

The government responds that Customs and the Court of International Trade 

correctly classified the merchandise under subheading 3701.30.00. The government 

2007-1430 -4-
argues that heading 8442 does not describe or make provision for unexposed plates 

with a photosensitive surface. The government adds that, while not binding, the 

Explanatory Notes are persuasive authority, and they specifically exclude plates with 

photosensitive coatings from heading 8442, indicating that heading 3701 is the 

appropriate heading for such merchandise. Also, because the plates have a 

photosensitive surface that allows visible images to be formed indirectly by the action of 

light, they satisfy the definition of “photographic” set forth in Note 2 to Chapter 37. 

We agree with the government that the Court of International Trade correctly 

granted judgment affirming Customs’ classification of the merchandise. We first set out 

the relevant portions of the HTSUS, as follows: 

3701 Photographic plates and film in the flat, sensitized, 

unexposed, of any material other than paper, paperboard or 

textiles; instant print film in the flat, sensitized, unexposed, 

whether or not in packs: 

3701.10.00 For X-ray 

 * * * 

3701.20.00 Instant print film 

 * * * 

3701.30.00 Other plates and film, with any side exceeding 

255 mm 

 

* * * * * * * * * * * 

8442 Machinery, apparatus and equipment . . . for type-founding 

or typesetting, for preparing or making printing blocks, 

plates, cylinders or other printing components; printing type, 

blocks, plates, cylinders and other printing components; 

blocks, plates, cylinders and lithographic stones, prepared 

for printing purposes (for example, planed, grained or 

polished); parts thereof 

 * * * 

8452.50 Printing type, blocks, plates, cylinders and other 

printing components; blocks, plates, cylinders and 

lithographic stones, prepared for printing purposes 

(for example, planed, grained or polished): 

8452.50.10 Plates 

2007-1430 -5-
Examination of its heading shows that the imported plates are prima facie 

classifiable under heading 3701. The language of heading 3701 is broad, covering 

“[p]hotographic plates . . . of any material other than paper, paperboard or textiles.” 

(Emphasis added.) Agfa’s argument that according to commercial use a photographic 

plate must be rigid and transparent would render heading 3701’s qualification excluding 

paper, paperboard, and textiles unnecessary. Further, the fact that the heading 

specifically excludes certain materials but does not recite a transparency requirement 

belies Agfa’s position. 

The imported goods also meet the definition of “photographic” in Note 2 to 

Chapter 37. Note 2 provides that the word “‘photographic’ relates to the process by 

which visible images are formed, directly or indirectly, by the action of light or other 

forms of radiation on photosensitive surfaces.” After washing, the action of the laser 

results in the creation of the visible image on the aluminum plate that will be used to 

transfer the ink that will create copies of that image on paper. Thus, a visible image is 

formed directly on the photosensitive surface by the action of light on that surface, and 

visible images are formed indirectly on paper by the action of light on that surface. The 

merchandise is thus photographic. 

The Explanatory Notes to heading 3701 also support the conclusion that the 

merchandise is prima facie classifiable under that heading. “Explanatory notes are not 

legally binding but may be consulted for guidance and are generally indicative of the 

proper interpretation of a tariff provision.” Degussa Corp. v. United States, 508 F.3d 

1044, 1047 (Fed. Cir. 2007) (citing Motorola, Inc. v. United States, 436 F.3d 1357, 1361 

2007-1430 -6-
(Fed. Cir. 2006)). Contrary to Agfa’s argument requiring transparency, the Explanatory 

Notes for heading 3701 describe “metal or stone (for photomechanical processes)” as 

“materials commonly used” for goods under that heading. Again, contrary to Agfa’s 

statement that the definition of photographic requires that the light directly cause a 

chemical reaction that forms the visible image (e.g., light acting through a negative on 

photographic paper), the Notes state that the included “goods are put to many uses 

such as . . . [p]hotomechanical process plates of the type used for photoengraving, 

photolithography, etc.” Thus, plates for processes including a mechanical step, such as 

transfer of ink or engraving, after the action of light on the photosensitive medium are 

clearly included within heading 3701. 

We also agree with the government and the Court of International Trade that the 

imported plates are not prima facie classifiable under heading 8442. The mere fact that 

the subject merchandise is referred to in the marketplace as “printing plates,” a term 

included in heading 8442, is by itself insufficient to establish that the imported goods 

should be classified under that heading. The wording of heading 8442 is strongly 

indicative of purely mechanical printing processes. Further, while heading 8442 itself 

does not foreclose photomechanical printing plates, neither does it specifically identify 

plates for photomechanical printing. While the language of heading 8442 might allow 

for some ambiguity, the Explanatory Notes to heading 8442 do not. They directly 

address the issue under consideration here. The Notes provide that “[s]ensitized plates 

(e.g., consisting of metal or plastics, coated with a sensitized photographic emulsion, or 

of a sheet of photosensitive plastics, whether or not affixed to a support or metal or 

other material) are excluded (heading 37.01).” It is hard to imagine a more definitive 

2007-1430 -7-
2007-1430 -8-

statement on the matter before us. The exact goods at issue are specifically described 

and excluded from heading 8442, and the reader is specifically directed to heading 

3701, the heading under which Customs has classified the subject merchandise. As 

stated above, while the Explanatory Notes are not binding, they are persuasive 

authority, and Agfa provides no convincing reason to disregard such clearly relevant 

guidance. 

Agfa does not dispute the classification of the imported goods under subheading 

3701.30.00, once it is established that they are classifiable under heading 3701. 

CONCLUSION 

 We affirm the Court of International Trade’s decision granting judgment in favor 

of the government and confirming Custom’s classification of the imported goods under 

heading 3701.30.00 of the HTSUS. 

AFFIRMED