Brother International Corp. v. United States

Slip Op. 02-80

UNITED STATES COURT OF INTERNATIONAL TRADE
BEFORE: SENIOR JUDGE RICHARD W. GOLDBERG

BROTHER INTERNATIONAL CORP.,

Plaintiff,

v. Court No. 00-01-00007

UNITED STATES,

Defendant.

[Summary judgment ordered for plaintiff.]

Dated: July 31, 2002

Barnes, Richardson & Colburn (Sandra Liss Friedman), for
plaintiff Brother International Corp.

Robert D. McCallum, Jr., Assistant Attorney General, John J.
Mahon, Acting Attorney in Charge, International Trade Field
Office, Commercial Litigation Branch, Civil Division, United
States Department of Justice (Barbara M. Epstein), for defendant
United States.

OPINION

GOLDBERG, Senior Judge: This case is before the Court upon

cross-motions for summary judgment. At issue is the proper

tariff classification of a part, styled model number “PC 101,”

used in certain multifunction center (“MFC”) machines and

facsimile machines. The plaintiff importer, Brother

International Corp. (“Brother”), which manufactures the MFC and

facsimile machines that use the PC 101, claims that the subject

merchandise should be classified under subheading 8473.30.50 of

the Harmonized Tariff Schedule of the United States (“HTSUS”)
(1998), and may be entered duty free. The United States Customs

Service (“Customs”) argues that the subject merchandise should be

classified under subheading 3702.44.00, HTSUS, dutiable at a rate

of 3.7% ad valorem. For the reasons that follow, the Court finds

that there are no material facts in dispute and that the subject

merchandise must be classified under subheading 8473.30.50,

HTSUS, and accordingly grants summary judgment for Brother.

I. BACKGROUND

The PC 101 is a part, commonly labled a “printing

cartridge,”1 that consists of a plastic housing with two gears on

each side. Inside the plastic housing is a roll of chemically

treated polyethylene terephthalate (“PET”) film, mounted on a

feed spool and attached to an uptake spool. The PC 101 is

specifically designed and constructed to be used in four models

of MFC machines2 and five models of facsimile machines

manufactured and sold by Brother. When the PC 101 has been

inserted into an appropriate MFC machine, and the machine

1
Customs emphatically denies that the PC 101 is accurately
characterized as a “printing cartridge,” and instead refers to
the PC 101 as a “‘PET’ film roll in a plastic housing.” Def.’s
Response to Pl.’s Statement of Material Facts Not in Dispute
(“Def.’s Undisputed Facts”), ¶¶ 4, 6. The Court observes from
Customs’s own exhibits, however, that the PC 101 is consistently
described as a “printing cartridge” in its packaging and
promotional literature. See, e.g., Def.’s Ex. A-4 (cardboard
box); Def.’s Ex. C (catalog). Of course, such labeling is not
dispositive of the issue of the proper tariff classification of
the merchandise.
2
MFC machines typically combine the functions of a
printer, digital copier, digital scanner, and facsimile machine.

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receives a command to print, the gears of the PC 101 interact

with those of the MFC machine to advance and position the roll of

PET film. The MFC machine’s thermal print head then heats the

PET film, thereby transferring the film’s chemicals to plain

paper in a pattern that creates the characters and images desired

by the user. Without the PC 101 installed, none of the

aforementioned MFC or facsimile machines could function in their

intended manner, as they would be unable to print.

Between January and March of 1998, Brother entered four

shipments of the subject merchandise at the port of Los Angeles.

In January 1999, Customs liquidated the entries, classifying the

merchandise as “. . . [p]arts of facsimile machines: [o]ther,”

under subheading 8517.90.08, HTSUS, dutiable at 2.4% ad valorem.

Brother filed timely protests, claiming that the subject

merchandise should be classified as “[p]arts and accessories

. . . suitable for use solely or principally with . . . machines

of heading 8471: [n]ot incorporating a cathode ray tube:

[o]ther,” under subheading 8473.30.50, HTSUS. Brother argued

that the PC 101 was principally used in MFC machines rather than

facsimile machines, and that the MFC machines that used the PC

101 were similar in all respects to another Brother MFC machine

that Customs Headquarters had previously ruled classifiable under

heading 8471. See U.S. Customs Service Headquarters Ruling

961153 (March 30, 1998). Customs denied the protests.

Brother paid all liquidated duties before timely commencing

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this action. In its response to Brother’s Complaint, Customs

filed a counterclaim in which it alleged that the subject

merchandise is properly classified under subheading 3702.44.00,

HTSUS, as “[p]hotographic film in rolls, sensitized, unexposed,

of any material other than paper, paperboard or textiles . . .

without perforations . . . [o]f a width exceeding 105mm but not

exceeding 610mm,” dutiable at a rate of 3.7% ad valorem. Both

parties moved for summary judgment.

The Court has jurisdiction under 28 U.S.C. §§ 1581(a) and

1583.

II. DISCUSSION

A. Standard of Review

Summary judgment should be granted “if the pleadings,

depositions, answers to interrogatories, and admissions on file,

together with the affidavits, if any, show that there is no

genuine issue as to any material fact and that the moving party

is entitled to judgment as a matter of law.” U.S.C.I.T. R.

56(c). “The proper scope and meaning of a tariff classification

term is a question of law to be reviewed de novo, while

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). That the latter determination is a question

of fact does not preclude an award of summary judgment “when

there is no genuine dispute as to the underlying factual issue of

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exactly what the merchandise is.” Bausch & Lomb, Inc. v. United

States, 148 F.3d 1363, 1365 (Fed. Cir. 1998). Thus, the Court

must grant summary judgment where the “nature and use” of the

subject merchandise is not in dispute, id. (quoting Nissho Iwai

Am. Corp. v. United States, 143 F.3d 1470, 1472-73 (Fed. Cir.

1998)), or where “none of the pertinent characteristics of the

merchandise is in dispute, and thus the sole issue is a matter of

properly interpreting the classification term at issue . . . to

determine whether the scope of that term is broad enough to

encompass the items with the particular characteristics.” Bausch

& Lomb, 148 F.3d at 1365 (ellipsis in original) (quoting IKO

Indus., Ltd. v. United States, 105 F.3d 624, 626-27 (Fed. Cir.

1997)).

Customs’s classification decisions enjoy a statutory

presumption of correctness. 28 U.S.C. § 2639(a)(1) (2000).

Citing Tomoegawa USA, Inc. v. United States, 12 CIT 112, 681 F.

Supp. 867 (1988), aff’d in part 7 Fed. Cir. (T) 29, 861 F.2d 1275

(1988), and Universal Elecs., Inc. v. United States, 20 CIT 337

(1996), aff’d 112 F.3d 488 (Fed. Cir. 1997), Brother argues that

Customs’s classification is not entitled to this presumption in

the instant case, because Customs has admitted that its initial

classification of the subject merchandise was erroneous.

If the Court were to find that material facts were

sufficiently in dispute as to preclude an award of summary

judgment, Brother would be correct. Instead, Brother’s argument

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is moot, for “when the Court is presented with a question of law

in a proper motion for summary judgment, th[e statutory]

presumption [of correctness] is not relevant.” Marathon Oil Co.

v. United States, 24 CIT __, __, 93 F. Supp. 2d 1277, 1279

(2000). The statutory presumption of correctness is simply “a

procedural device that is designed to allocate, between the two

litigants in a lawsuit, the burden of producing evidence in

sufficient quantity.” Universal Elecs. Inc. v. United States,

112 F.3d 488, 492 (Fed. Cir. 1997). “[W]ith respect to pure

questions of law, such as the proper interpretation of a

particular tariff provision or term[,] . . . the importer has no

duty to produce evidence as to what the law means because

evidence is irrelevant to that legal inquiry.” Id. Thus, in a

case such as this one, where the Court determines that there are

no material facts in dispute, Customs’s proposed classification

is not entitled to the statutory presumption of correctness.3

3
The Court recognizes that this determination contravenes
certain language in a recent Court of International Trade
decision suggesting otherwise. See Rubie’s Costume Co. v. United
States, 26 CIT __, __, 196 F. Supp. 2d 1320, 1325 (2002) (“Where
[ ] there are no material facts in dispute and only questions of
law remain, Plaintiff must show legal error to overcome the
statutory presumption of correctness.”). In so holding, Rubie’s
Costume relied on Commercial Aluminum Cookware Co. v. United
States, 20 CIT 1007, 1013, 938 F. Supp. 875, 881 (1996).
However, the holding of Commercial Aluminum on this point is
disfavored. See Rollerblade, Inc. v. United States, 112 F.3d
481, 484 (Fed. Cir. 1997) (“Customs’ and the Court of
International Trade’s (in Commercial Aluminum) interpretation of
§ 2639 is inconsistent with our precedent . . . .”); Verosol USA,
Inc. v. United States, 20 CIT 1251, 1252 n.5, 941 F. Supp. 139,
141 n.5 (1996) (“Were the Commercial Aluminum rule followed, the
responsibility of the Court of International Trade to interpret

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 However, there exists an important distinction between a

presumption of correctness, which is a procedural device that

allocates evidentiary burdens between two parties to a

litigation, and the notion of deference, which is governed by

standards of review. See Universal Elecs., 112 F.3d at 493. The

Court does owe deference to Customs’s classification rulings “in

accordance with the principles set forth in Skidmore v. Swift &

Co., 323 U.S. 134 (1944).” Franklin, 289 F.3d at 757 (citing

United States v. Mead Corp., 533 U.S. 218, 234-35 (2001); Mead

Corp. v. United States, 238 F.3d 1342, 1346 (Fed. Cir. 2002)).

The Court of International Trade gives deference to Customs’s

classification rulings proportional to their “power to persuade,”

Mead, 533 U.S. at 235 (quoting Skidmore, 323 U.S. at 140), in

accordance with their “thoroughness, logic and expertness, [ ]

fit with prior interpretations, and any other sources of weight.”

Mead, 533 U.S. at 235. That Customs has abandoned its original

classification of the subject merchandise, and now advances

another in its litigation briefs, is certainly one factor the

Court is entitled to consider in assessing the persuasive power

of Customs’s proposed classification.

B. The Parties’ Arguments

Brother claims that the PC 101 is prima facie classifiable

tariff terms would be greatly curtailed; no longer determined de
novo by the court, the meaning of tariff terms would instead
depend on the quality of the advocacy of the litigant challenging
Customs’ interpretation.”).

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under heading 8473 of the HTSUS as a “[p]art[] . . . suitable for

use solely or principally with machines of headings 8469 to

8472.” Brother argues that the PC 101 is a “part” because it is

integral to the successful functioning of the machines in which

it is used, and that unrebutted evidence proves it is used

“principally” with MFC machines, which are classifiable under

heading 8471.4

Citing Bauerhin Techs. Ltd. P’ship v. United States, 110

F.3d 774 (Fed. Cir. 1997), Brother observes that an imported item

is classifiable as a part if it passes either of two tests: (1)

it is an “integral, constituent, or component part, without which

the article to which it is to be joined, could not function as

such article,” id. at 779 (quoting United States v. Willoughby

Camera Stores, Inc., 21 CCPA 322 (1933)), or (2) it is “dedicated

solely for use with another article.” Bauerhin, 100 F.3d at 779

(citing United States v. Pompeo, 43 CCPA 9 (1955)). Brother

claims that the PC 101 passes both tests. It is an integral part

of MFC machines because without the PC 101, such machines could

not function in their intended roles as they would lack the means

4
Customs has approved protests for each of the MFC models
that use the PC 101, classifying them under subheading
8471.60.6500, HTSUS. Pl.’s Statement of Material Facts Not in
Dispute Pursuant to R. 56(h) (“Pl.’s Material Facts”), ¶ 15;
Def.’s Material Facts, ¶ 15. Although Customs argues that
Brother has failed to establish that the PC 101 is principally
used in MFC machines, rather than in facsimile machines (which
are not classifiable under headings 8469 to 8472), Customs does
not argue that MFC machines are not properly classifiable under
heading 8471.

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to create a printed image, and would instead display an error

message instructing the user to insert a PC 101 cartridge.

Brother claims that the PC 101 also passes the second Bauerhin

test because it is dedicated solely for use with MFC and

facsimile machines, and has no other legitimate or fugitive

uses.5

In response to Customs’s argument that the PC 101 is

classifiable as photographic film because it contains a roll of

PET film, Brother directs the Court’s attention to the decision

of the Court of Appeals for the Federal Circuit in Mita Copystar

America v. United States, 160 F.3d 710 (Fed. Cir. 1998). In that

case, the Federal Circuit reversed this Court’s classification of

toner cartridges for photocopier machines as “chemical

preparations for photographic uses,” under subheading 3707.90.30.

Instead, the Mita court held that such cartridges were properly

classified as “parts and accessories of electrostatic

photocopying apparatus,” under subheading 9009.90.00, id. at 714,

notwithstanding the fact that the toner contained within the

cartridges was itself classifiable as “chemical preparations for

photographic uses” when imported separately. Id. at 712. The

5
While contesting their legal relevance, Customs admits
the essential accuracy of these characterizations of the PC 101's
functions. See Def.’s Material Facts, ¶ 8 (admitting PC 101 is
involved in the printing process), ¶ 10 (admitting without the PC
101 installed, none of the MFC machines could function in their
intended manner as they would be unable to print), ¶ 11
(admitting that the PC 101 is “designed and constructed to be
used” in Brother’s MFC and facsimile machines).

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court reasoned that the cartridges were parts of photocopier

machines because they “are sold with toner inside; they remain

with the toner throughout its use by the photocopier; they are

the standard device for providing toner to the photocopier; and

they are not designed for reuse.” Id. at 712-13. Observing that

Note 2(b) to Chapter 90 of the HTSUS required that parts of

particular machines “are to be classified . . . with the machines

of that kind,” and that neither the chapter nor heading notes

governing heading 3707 required goods classifiable under that

heading to be classified thus, the court held that the cartridges

should be classified as photocopier parts. Id. at 713-14.

Brother argues that Mita governs the resolution of the instant

case because: (1) the toner in the cartridges in Mita is

analogous to the PET film roll in the PC 101; and (2) Note 2(b)

of Section XVI (which subsumes heading 8473) of the HTSUS

requires parts classifiable under heading 8473 to be classified

within that heading, just as did the Chapter Note in Mita.

Customs claims that the PC 101 is prima facie classifiable

under heading 3702 of the HTSUS as “[p]hotographic film in rolls,

sensitized, unexposed, of any material other than paper,

paperboard, or textiles.” Citing QMS, Inc. v. United States, 19

CIT 551 (1995), in which the Court of International Trade held

that rolls of PET film were classifiable as “photographic film”

under heading 3702, Customs argues that the PC 101 is likewise

classifiable under heading 3702 because it is simply a roll of

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PET film in plastic housing. Customs argues that whatever the

merits of Brother’s proposed classification of the PC 101 as a

part, because the QMS court found that “photographic film” under

heading 3702 was a more specific description than “parts and

accessories” under heading 8473, see id. at 561, 563, this court

is obliged by principles of stare decisis to classify the PC 101

under subheading 3702.44.00.

C. The PC 101 Is Classifiable Under Subheading 8473.30.50

In determining the proper classification of imported

merchandise, the Court is guided by the General Rules of

Interpretation (“GRI”) of the HTSUS and the Additional United

States Rules of Interpretation. See Franklin v. United States,

289 F.3d 753, 757 (Fed. Cir. 2002). GRI 1 provides that

“classification shall be determined according to the terms of the

headings and any relative section or chapter notes . . . .” The

GRI must be applied in numerical order, see North Am. Processing

Co. v. United States, 236 F.3d 695, 698 (Fed. Cir. 2001); thus,

if the application of GRI 1 provides the proper classification,

the Court may not consider any of the subsequent GRI. See Mita,

160 F.3d at 712.

1. The PC 101 is a “part”

For the PC 101 to be classifiable under heading 8473,

Brother must first establish that it is a “part.” The PC 101 has

the indicia of a part, notwithstanding the fact that it contains

a roll of PET film that would otherwise be classifiable as

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“photographic film[]” if imported separately. The PC 101 is sold

with the PET film inside; the PC 101 remains with the PET film

throughout its use by the MFC and facsimile machines; and the PC

101 is the standard device for providing the MFC or facsimile

machines with the PET film that is required for them to be able

to print images on paper. Cf. Mita, 160 F.3d at 712-13.6

Moreover, as Brother argues, the PC 101 comports with the

definitions of parts set forth in Bauerhin Techs. Ltd. P’ship v.

United States, 110 F.3d 774 (Fed. Cir. 1997). First, the PC 101

is an integral part of the MFC and facsimile machines that use

it, for these machines cannot function in their intended capacity

unless the PC 101 is properly inserted, as they would lack the

means to create a printed image. Cf. id. at 779 (citing United

States v. Willoughby Camera Stores, Inc., 21 CCPA 322 (1933)).

And second, the cartridge is exclusively designed and constructed

6
The PC 101, unlike the toner cartridges at issue in Mita,
is apparently capable of reuse. See Def.’s Ex. C (advertising
refill rolls of PET film for the PC 101). In light of the other
indicia that the PC 101 is a part, the Court does not understand
the PC 101's suitability for reuse to preclude a determination
that it is a part. The reuse provision in Mita was derived from
Bruce Duncan Co., Inc. v. United States, 63 Cust. Ct. 412 (1969),
but in that case the court focused on the imported butane
cartridges’ incapacity for reuse in order to distinguish them
from ordinary shipping containers holding butane. In light of
the especial design, including gears, of the PC 101's plastic
housing, Customs cannot and does not contend that it is merely a
shipping container.
Neither does the possibility that the refill rolls, imported
individually, might be properly classified as “photographic
films” require a contrary result. It is axiomatic that the
classification of imported articles is determined by their
condition at the time of importation. See, e.g., Donalds Ltd. v.
United States, 32 Cust. Ct. 310, 314 (1954).

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for use in Brother’s MFC and facsimile machines. Cf. Bauerhin,

110 F.3d at 779 (citing United States v. Pompeo, 43 CCPA 9

(1955)); see also infra Part II.D.2. In light of Mita and

Bauerhin, the Court concludes that the PC 101 is a “part” within

the meaning of the tariff statutes.

2. Brother’s uncontroverted evidence establishes that
the PC 101 is principally used in MFC machines

Customs argues that even if the PC 101 may be considered a

“part,” the Court cannot find that it falls within the ambit of

heading 8473 because the determination of whether the PC 101 is

“principally used” with machines of heading 8471, i.e., MFC

machines rather than facsimile machines, is a factual

determination not amenable to disposition on summary judgment.

The Court finds this contention to be without merit.

Customs is certainly correct that the determination of

whether the PC 101 is principally used with MFC machines is

primarily a factual determination. However, there exists no

genuine issue as to this material fact, as Customs has proffered

nothing to rebut the substantial evidence Brother has adduced

showing that the PC 101 is principally used with MFC machines.

Customs concedes that the PC 101 is designed and constructed for

use in Brother’s MFC and facsimile machines, see supra n.5, and

has not alleged that it has any other legitimate or fugitive

uses. Brother has submitted an affidavit from Matthew Hahn,

Director of Marketing, Product Accessories, at Brother, stating

that the PC 101 can only be used with certain of Brother’s MFC

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and facsimile machines and that it has no other known uses.

Thus, there is no real dispute that the PC 101 is used

exclusively in Brother’s MFC and facsimile the machines; the only

remaining issue is in which one of the two types of machines it

is principally used.7

7
As Customs concedes that the PC 101 has no other uses,
the Court can reject out of hand Customs’s argument that summary
judgment is inappropriate because Brother has not established the
“class or kind” of goods to which the PC 101 belongs. Customs’s
argument rests on its misconstruction of Add’l U.S. R.
Interpretation 1(a), which provides:

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.

Customs maintains that because heading 8473 is a use
provision, Brother is obliged to demonstrate the “class or kind”
to which the subject merchandise belongs--“not merely for the
specific merchandise at issue (i.e., the PC 101), but for the
‘class or kind’ of merchandise to which that importation belongs
(e.g., ‘photographic film’).” Def.’s Reply Mem., at 12-13.
Customs’s argument betrays a fundamental misapprehension of the
nature and purpose of the “class or kind” inquiry.
“The purpose of ‘principal use’ provisions in the HTSUS is
to classify particular merchandise according to the ordinary use
of such merchandise, even though particular imported goods may be
put to some atypical use.” Primal Lite, Inc. v. United States,
182 F.3d 1362, 1364 (Fed. Cir. 1999) (noting by way of example
that a race car imported for use in advertising would still be
classified as a vehicle used principally for automobile racing).
The scope of the “class or kind” inquiry should be narrowly
tailored to “the particular species of which the merchandise is a
member.” Id. The inquiry takes into account whether the
pertinent characteristics of the imported merchandise are akin to
those of the typical merchandise falling within the proposed use
classification. See Minnetonka Brands, Inc. v. United States, 24
CIT __, __, 110 F. Supp. 2d 1020, 1027 (2000) (factors for
consideration include purchasers’ expectations, the environment
of the sale, and recognition within the trade).
Thus, the relevant inquiry here is not, as Customs suggests,

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 Mr. Hahn’s affidavit states that in 1998, the year in which

the subject merchandise was entered, Brother sold 19,801 MFC

machines that use the PC 101, and 6,397 facsimile machines that

use the PC 101. Expressed in relative terms, 75.6% of the

machines were MFC machines and 24.4% were facsimile machines--a

ratio of more than three to one. The uncontroverted and

unimpeached testimony of a single witness may be sufficient to

establish the use of an imported good. United States v. Gardel

Indus., 33 CCPA 118, 122 (1946); Arden Mfg. Co. v. United States,

65 Cust. Ct. 594, 599 (1970); accord Innotech Aviation Ltd. v.

United States, 21 CIT 1392, 1395, 992 F. Supp. 411, 414 (1997).

While Customs posits that the subject merchandise could be

principally used as replacement parts in facsimile machines sold

prior to 1998, it offers not a scintilla of evidence to support

how the class of “photographic film” is principally used, because
heading 3702 is not the heading being construed (and is not, in
any event, a use heading). Instead, the only “class or kind”
issue in this case is whether Brother can demonstrate that the PC
101 falls within the class or kind of “parts for MFC machines,”
rather than the class or kind of “parts for facsimile machines.”
Cf. Pistorino & Co., Inc., 67 CCPA 1, 3-4, 607 F.2d 989, 991-92
(1979) (holding that entries of beam cutters principally destined
for use in the shoe industry were not classifiable as “shoe
machinery” because they were not shown to be of a different class
or kind than other beam cutters). That determination turns on
principal use.
Brother’s undisputed evidence shows that the subject
merchandise was not entered for some atypical or fugitive use,
that the PC 101's essential characteristics are not unlike those
of parts for multifunction centers, that the PC 101 is treated as
a part of an MFC machine within the marketplace, and, as
discussed infra, that the PC 101 is principally used as a part
for MFC machines. Consequently, there is no live factual dispute
concerning the “class or kind” of goods to which the PC 101
belongs.

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this idle speculation. More importantly, as explained infra n.7,

the use inquiry focuses on the principal use, at the time of

importation, of the class or kind of good to which the subject

merchandise belongs. Brother’s sales figures for 1998 clearly

establish that the principal use for the PC 101 at the time of

importation was as a part for MFC machines.

In opposing Brother’s motion for summary judgment, Customs

is not entitled “simply [to] rest on its pleadings. Rather, it

must produce evidence . . . which set[s] forth specific facts

showing that there is a genuine issue for trial.” Black & White

Vegetable Co. v. United States, 24 CIT __, __, 125 F. Supp. 2d

531, 536-37 (2000) (internal quotation marks omitted). See also

Crown Operations Int’l, Ltd. v. Solutia, Inc., 289 F.3d 1367,

1375 (Fed. Cir. 2002) (“Once the moving party has satisfied its

initial burden, the opposing party must establish a genuine issue

of material fact and cannot rest on mere allegations, but must

present actual evidence.”). As Customs has not met this burden,

there is no material dispute that the PC 101 is principally used

with machines of heading 8437. Because the Court has already

determined that the PC 101 is a part, the subject merchandise is

prima facie classifiable under subheading 8473.30.50, HTSUS.

D. The PC 101 must be classified under heading 8473
regardless of whether it is also prima facie
classifiable as “photographic film[]”

Having established that the subject merchandise is prima

facie classifiable as parts of MFC machines, the Court turns to

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Customs’s competing proposed classification. Customs argues that

because the court in QMS, Inc. v. United States, 19 CIT 551

(1995), classified a roll of PET film as “photographic film”

under heading 3702, the PC 101 is likewise classifiable under

heading 3702 because it contains a roll of PET film. Customs

contends that even if the PC 101 is also prima facie classifiable

as a part of a MFC machine, by operation of GRI 3(a)8 it must be

classified under heading 3702, as the QMC court found the heading

for “photographic films” to be more specific than the alternative

“parts and accessories” classification at issue in that case.

Customs further argues that the Court must classify the PC 101 as

photographic film out of respect for congressional intent, and

for the principles of stare decisis.

1. The Court is not bound by stare decisis to follow QMS

Taking these arguments in reverse order, the Court begins by

rejecting Customs’s argument that the Court’s obligation to

follow QMS controls this case. “The applicability of the

doctrine of stare decisis is within the discretion of the

[C]ourt.” De Laval Separator Co. v. United States, 1 CIT 144,

148, 511 F. Supp. 810, 814 (1981). Certainly, the Court

recognizes the general principle that “stare decisis is bottomed

on the sound public policy that there must be an end to

8
GRI 3(a) directs that when goods are prima facie
classifiable under two or more headings, they should be
classified under the heading providing the most specific
description.

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litigation and that, therefore, questions formerly determined

should not be readjudicated except on a showing of clear and

convincing error in the former holding.” Schott Optical Glass,

Inc. v. United States, 7 CIT 36, 38, 587 F. Supp. 69, 70-71

(1984), rev’d 3 Fed. Cir. (T) 35, 750 F.2d 62 (1984). However,

the doctrine presents special problems in the context of

classification cases. It is a well-established principle that

“in customs classification cases a determination of fact or law

with respect to one importation is not res judicata as to another

importation of the same merchandise to the same parties.” Schott

Optical Glass, Inc. v. United States, 3 Fed. Cir. (T) 35, 36, 750

F.2d 62, 64 (1984) (citing United States v. Stone & Downer Co.,

274 U.S. 225, 236 (1927)). At a minimum, the party opposing the

application of stare decisis must be afforded an opportunity to

show that the prior decision was clearly erroneous. Schott

Optical, 3 Fed. Cir. (T) at 37-38, 750 F.2d at 64-65.

Application of stare decisis is particularly inappropriate here,

where the imported merchandise is different, the parties are

different, and the intervening decision by the Federal Circuit in

Mita may well have circumscribed the relevance of QMS to the

instant case.

2. Evidence of Congress’s intent with respect to
photographic films undercuts Customs’s argument that
the PC 101 must be classified under heading 3702

In QMS, the court rejected Customs’s classification of the

PET film rolls at issue as “typewriter or similar ribbons,” and

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then determined that the rolls were classifiable as “photographic

film” because it understood the statutory and scientific

definitions of “photographic” to be “sufficiently broad so as to

indicate a legislative intent to include within the tariff

provisions of Chapter 37 more processes than what may be

considered conventional photography.” 19 CIT at 562. Applying

GRI 3(a), the court then classified the merchandise as

photographic film, in preference to the importer’s proposed

classification of the rolls as “parts and accessories,” on the

grounds that the latter classification was less specific.

In classifying rolls of PET film as photographic film, the

QMS court did not have occasion to consider the legislative

history that Customs now cites as evidence that Congress intended

for photographic film to be classified only as such. In United

States v. American Express Co., 29 CCPA 87 (1941), which Customs

cites extensively, the United States Court of Customs and Patent

Appeals held that film separators that were parts of film packs

were not classifiable as “parts of cameras.” The court reasoned

that the film packs of which the film separators were a part

could not themselves be classified as parts of cameras, because

Congress intended that rolls of film not be dutiable as parts of

cameras. Id. at 92-95. Customs seizes on this holding as

evidence that Congress intended that the PET film in the PC 101

be classified as photographic film.

Customs’s argument, however, overlooks the rationale

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underlying Congress’s intent. As the American Express court

recognized, Congress provided for separate treatment of film

rolls in the Tariff Schedule of the United States (“TSUS”)

because it recognized that film was a discrete product; like the

paper used in a typewriter, it was simply “the material upon

which the camera operates.” Id. at 95. Through interaction with

the camera, the film becomes exposed, and is removed, retaining

its essential characteristic as an item with intrinsic value,

suitable for use in other purposes, such as archiving images or

making prints therefrom. See id.; see also Charles Hagen, “Just

How Sacred Should Photo Negatives Be?”, N.Y. Times, C-13 (March

3, 1992) (discussing almost priceless value of Edward Weston’s

film negatives).

By contrast, the PET film roll within the PC 101 is not the

material on which an MFC machine that uses it operates. It is

not the output of the MFC machine, but merely plays a role in the

production of that output, the paper on which an image is created

through interaction of the PC 101 and the MFC machine’s thermal

print head. Once the PET film roll within the PC 101 is used up,

it is discarded; it has no intrinsic value or separate purpose.

Thus, the evidence of Congress’s intent actually militates

against the classification of the PET film roll within the PC 101

as photographic film. The court need not decide this issue,

however, for assuming arguendo that the PET film roll within the

PC 101 is prima facie classifiable as photographic film, the

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rationale underlying Congress’s intent that it be classified as

such rather than as a part clearly does not apply.

3. By operation of GRI 1 and Section XVI Note 2(b), HTSUS

Customs claims that even if the PC 101 is prima facie

classifiable both as a part of MFC machines and as photographic

film, in accordance with QMS and GRI 3(a) it must be classified

as the latter because that heading provides the more specific

description. See QMS, 19 CIT at 561, 563.

As discussed infra, the GRI must be applied in numerical

order. See North Am. Processing Co. v. United States, 236 F.3d

695, 698 (Fed. Cir. 2001). Thus, if the application of GRI 1

provides the proper classification, the Court need not apply the

relative specificity provision of GRI 3(a). GRI 1 provides that

“classification shall be determined according to the terms of the

headings and any relative section or chapter notes.” Note 2(b)

to Chapter XVI provides that “[o]ther parts, if suitable for use

solely or principally with a particular kind of machine, . . .

are to be classified with the machines of that kind or in heading

. . . 8473 . . . as appropriate.” Because the relative section

note provides that goods classifiable as parts of MFC machines

shall be classified as such, the Court need not perform a

relative specificity analysis under GRI 3(a).9

9
Were the Court to undertake such an analysis, it is far
from certain that it would reach the same result as did the QMS
court. Under the rule of relative specificity, a good should be
classified under “the provision with requirements that are more
difficult to satisfy and that describe the article with the

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III. CONCLUSION

For the foregoing reasons, the Court finds that the subject

merchandise must be classified under subheading 8473.30.50,

HTSUS, as a “[p]art[] . . . suitable for use . . . principally

with . . . machines of heading [8471]: [n]ot incorporating a

cathode ray tube: [o]ther.”

_________________________
Richard W. Goldberg
Senior Judge

Dated: July 31, 2002
New York, NY

greatest degree of accuracy and certainty.” Orlando Food Corp.
v. United States, 140 F.3d 1437, 1441 (Fed. Cir. 1998). “[A]
product described by both a use provision and an eo nomine
provision is generally more specifically provided for under the
use provision.” Id.

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 ERRATA

Brother International Corp. v. United States, Court No. 00-01-
00007, Slip Op. 02-80, issued July 31, 2002.

• On page 1, the identification of plaintiff’s counsel should
read “Barnes, Richardson & Colburn (Sandra Liss Friedman,
Frederic D. Van Arnam Jr., and Joseph M. Spraragen), for
plaintiff Brother International Corp.”

• All five references to ““photographic film[]”” or
““photographic films””(see page 12, line 1; page 12, lines
15-16 of footnote 6; page 16, subheading D; page 17, line 9;
and page 18, sub-subheading 2) should instead each read
““photographic film””

• On page 21, sub-subheading 3, which reads

“3. By operation of GRI 1 and Section XVI Note 2(b), HTSUS”

should instead read

“3. By operation of GRI 1 and Section XVI Note 2(b), HTSUS,
the PC 101 must be classified under heading 8473”