Terms of Art

Here is something I have not done for a while: a post on case law. It’s not that I don’t read the cases. It’s just that on the customs side, they haven’t really inspired much comment. But, here are a few tidbits.

In Agfa Corp. v. United States (Slip Op. 07-80), the question was whether the tariff definition of “photographic plate” trumped the understanding of that term by essentially everyone in the world. Think fast—picture a photographic plate in your head. If you are older than the digital age and have even a passing knowledge of photography, you conjured up an image of exactly what Agfa claims is a photographic plate. Everyone knows a photographic plate is a transparent piece of rigid material (usually glass) coated with a light-sensitive material. I’m not sure, but I think this is the same technology Matthew Brady used to take pictures during the Civil War.

Agfa imported photomechanical (or “photolithography”) printing plates of aluminum and a photosensitive polymer or emulsion layer. Apparently, they are not transparent. Agfa claimed the merchandise was not properly classified as photographic plates but as printing blocks or plates. Essentially, Agfa asked the court (via Chief Judge Restani) to limit the tariff term “photographic plates” to photographic plates as that term of art is known in the trade.

This is essentially a commercial designation argument, although it is not really. Commercial designation comes up when the claim is that the common and commercial meanings are not the same and that the commercial meaning should prevail. Here, the argument was simply that “photographic plate” is a term of art with a distinct and well-known meaning.

Agfa’s problem, however, was that the legal notes to the tariff include a definition of “photographic” that is broader than the Matthew Brady process. It includes any process by which images are formed by the action of light on a photosensitive surface. That is broad enough to encompass photolithography. Given the legal notes, the Court had no choice but to apply the tariff definition rather than the understanding of Ansel Adams, William Wegman, or Man Ray. The fact that the notes include examples of plates made of non-transparent materials including paper also did not help.

The moral of this story is simply that the Chapter and Section Notes control the interpretation of the tariff terms, even if they contradict the prevailing understanding of the meaning of a term. In other words, if the WCO and (in theory) Congress say a photographic plate may be made of cinder blocks, the fact that everyone knows that is stupid won’t help the poor importer of photosensitive cinder blocks.

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