148 F.3d 1363 (Fed. Cir. 1998), 97-1333, Bausch & Lomb, Inc. v. United States

Docket Nº:97-1333.
Citation:148 F.3d 1363
Party Name:BAUSCH & LOMB, INCORPORATED, Plaintiff-Appellant, v. The UNITED STATES, Defendant-Appellee.
Case Date:July 08, 1998
Court:United States Courts of Appeals, Court of Appeals for the Federal Circuit

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148 F.3d 1363 (Fed. Cir. 1998)

BAUSCH & LOMB, INCORPORATED, Plaintiff-Appellant,


The UNITED STATES, Defendant-Appellee.

No. 97-1333.

United States Court of Appeals, Federal Circuit

July 8, 1998

Michael K. Tomenga, Neville, Peterson & Williams, of Washington, DC, argued for plaintiff-appellant. With him on the brief was Jamie L. Boucher, McKenna & Cuneo, L.L.P, of Washington, DC.

Barbara S. Williams, Office of the Assistant Attorney General, Civil Division, Commercial Litigation Branch, International Trade Field Office, U.S. Department of Justice, New York, New York, argued for defendant-appellee. With her on the brief were Frank W. Hunger, Assistant Attorney General, David M. Cohen, Director, U.S. Department of Justice, Washington, DC; and Joseph I. Liebman, Attorney in Charge, International

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Trade Field Office. Of counsel on the brief was Mark K. Nackman, Attorney, Office of Assistant Chief Counsel, International Trade Litigation, United States Customs Service, New York, New York.

Before MICHEL, PLAGER, and LOURIE, Circuit Judges.

PLAGER, Circuit Judge.

This case requires us to answer the question of whether an electric toothbrush is properly classified under the Harmonized Tariff Schedule of the United States ("HTSUS") as a "toothbrush" or as an "electromechanical domestic appliance." In the course of doing so, we have been asked by the trial court to clarify the circumstances under which summary judgment may be granted when there is a dispute over the proper classification. Because the Court of International Trade correctly adjudged the latter classification to be the proper one, Bausch & Lomb, Inc. v. United States, 957 F.Supp. 281, 19 ITRD 1216 (C.I.T.1997), and because we conclude that summary judgment is appropriate in these circumstances, we affirm.


The merchandise at issue in this classification case is a battery-operated electric toothbrush sold under the trademark "Interplak." Appellant, Bausch & Lomb, Inc. ("Bausch & Lomb"), imports several different models of this product. For purposes of the present appeal it is sufficient to focus on the common elements of each. As described by the trial court, and admitted by Bausch & Lomb, the Interplak comprises three basic elements:

one to four interchangeable plastic toothbrush heads;

a detachable plastic handle containing a battery-operated motor and a compartment for two rechargeable batteries; and

a stand that incorporates a battery recharger.

Bausch & Lomb, 957 F.Supp. at 282.

Bausch & Lomb imported the subject merchandise into the United States between January 8, 1991 and August 12, 1992. Until February 6, 1991, the merchandise was classified by Customs as "[t]oothbrushes" under HTSUS Subheading 9603.21.00. On that date, however, Customs issued a Notice of Action reclassifying the Interplak as "[o]ther [electromechanical domestic] appliances" under HTSUS Subheading 8509.80.00. Despite their prior treatment as toothbrushes, Customs liquidated the subject merchandise as "[o]ther appliances." Bausch & Lomb filed a protest, claiming that the entries should continue to be classified as "[t]oothbrushes." Customs denied the protest, and Bausch & Lomb filed the present suit in the Court of International Trade under section 515(a) of the Tariff Act of 1930. See 19 U.S.C. § 1515(a) (1994).

Before that court, both parties moved for summary judgment. Finding no genuine issue of material fact, the trial court granted the Government's motion and denied Bausch & Lomb's, holding that, as a matter of law, the Interplak was properly classified as an appliance under 8509.80.00 of the HTSUS. Bausch & Lomb now appeals from that decision. We have jurisdiction over the final decision of the Court of International Trade pursuant to 28 U.S.C. § 1295(a)(5) (1994).



Before reaching the merits of this case, we turn first to the procedural question raised by the trial court. The problem, as the trial court saw it, is created by this court's routine characterization of classification determinations as involving a two-step process. 1 As the trial court noted, the general

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statement found in many of our cases is that, when there is a dispute over which of two or more tariff classifications particular merchandise falls under, the court analyzes the problem in two steps: first, construe the relevant classification headings; and second, determine under which of the properly construed tariff terms the merchandise at issue falls. See, e.g., Universal Elecs., Inc. v. United States, 112 F.3d 488, 491 (Fed.Cir.1997). The first step of construing the tariff classification terms is denominated a question of law, see id., while the second step is, under the usual iteration of the rule, referred to as a factual inquiry, see id. The trial court viewed this characterization of the two-step process as raising a logical and practical dilemma when deciding classification cases...

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