## 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 Washi ngton, 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, Un ited States Departm ent of Justice, of New York, New York, argued for defendant-appel lee. 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, Internati onal 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 Inte rnational 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”) appeal s from the decision of t he United States Court of International Trade granting final judgment in favor of the United States and holding that United States Customs and Bo rder 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 Stat es (“HTSUS”). Because the Court of International Trade correctly cla ssified the merchandise, we affirm.BACKGROUND The subject merchandise consists of th in planed and grained aluminum sheets coated on one side with a photosensitive polymer layer and used for offset lithographic printing. All of t he 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 operat ion 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 polym er. The oil-based ink and water solution do not mix. The ink transfers fr om the sheet to a blanket cyli nder and then from the blanket cylinder to the paper. At issue are twenty-six importations, consis ting of five specific models, of the subject merchandise entered into the United States by Agfa between September 29, 2003, and November 2, 2003. Customs cl assified the merchandise under subheading 3701.30.00, covering “Photographic pl ates 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 classifi ed 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 leas t two sides measuri ng greater than 255 mm. The court determined that the specific definition of “photographi c” in Note 2 to Chapter 37 counseled against finding “photographi c plate” to be a term of art. The court also determined that Agfa’s proposed def inition of “photographi c plate,” requiring a glass substrate and allegedly based on co mmercial 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 polym er layer meant that light was used to indirectly create the print ed image. The court also observed that the Explanatory Notes for heading 3701 indicate that “photogr aphic plates” may be made from a variety of materials and used in photomechanical pr ocesses. The court determined that heading 8442, in contrast, includes no refer ence to photosensitive materials, and the Explanatory Notes for heading 8442 specific ally 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 par ticular 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 under lying 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 Inter national 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 re ferred 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 we ight to the Explanat ory Notes for heading 8442 because the Notes are not binding and the spec ific 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 re cited in another heading. Agfa argues that the court should ther efore have relied on the comme rcial 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 gover nment adds that, while not binding, the Explanatory Notes are persuasiv e authority, and they specif ically 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 “photogr aphic” set forth in Note 2 to Chapter 37. We agree with the gover nment that the Court of In ternational Trade correctly granted judgment affirming Customs’ classifica tion 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 ot her 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 equi pment . . . for type-founding or typesetting, for preparing or making printing blocks, plates, cylinders or other prin ting 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 l anguage 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 trans parent 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 definit ion 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, t he 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 photosensit ive 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. “Explana tory notes are not legally binding but may be consulted for gui dance and are generally indicative of the proper interpretation of a tariff provis ion.” 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 ar gument requiring transpar ency, the Explanatory Notes for heading 3701 describe “metal or st one (for photomechanical processes)” as “materials commonly used” for goods under that heading. Again, contrary to Agfa’s statement that the def inition of photographic requires that the light directly cause a chemical reaction that fo rms the visible image (e.g. , light acting through a negative on photographic paper), the Notes st ate that the included “goods are put to many uses such as . . . [p]hotomechanical process pl ates of the type us ed for photoengraving, photolithography, etc.” Thus, pl ates for processes including a mechanical step, such as transfer of ink or engraving, after the acti on of light on the photosensitive medium are clearly included within heading 3701. We also agree with the gover nment and the Court of Inte rnational Trade that the imported plates are not prima facie classifi able under heading 8442. The mere fact that the subject merchandise is referred to in t he marketplace as “printing plates,” a term included in heading 8442, is by itself insuffici ent to establish that the imported goods should be classified under that heading. T he wording of heading 8442 is strongly indicative of purely mechanical printing proc esses. Further, while heading 8442 itself does not foreclose photomechanical printing plates, neither does it specifically identify plates for photomechanical printing. Wh ile the language of heading 8442 might allow for some ambiguity, the Explanatory Note s to heading 8442 do not. They directly address the issue under considerat ion here. The Notes provide that “[s]ensitized plates (e.g., consisting of metal or plastics, c oated with a sensitized phot ographic emulsion, or of a sheet of photosens itive plastics, whether or not a ffixed 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 Cust oms has classified the subject merchandise. As stated above, while the Explanatory Notes are not binding, t hey 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 t hey are classifiable under heading 3701. CONCLUSION We affirm the Court of International Trade’s decision grantin g judgment in favor of the government and confirmi ng Custom’s classification of the imported goods under heading 3701.30.00 of the HTSUS.
AFFIRMED