861 F.2d 710 (Fed. Cir. 1988), 88-1185, Convertors Div. of American Hosp. Supply Corp. v. United States

Docket NºAppeal No. 88-1185.
Citation861 F.2d 710
Party NameCONVERTORS DIVISION OF AMERICAN HOSPITAL SUPPLY CORPORATION, Plaintiff-Appellant, v. The UNITED STATES, Defendant-Appellee.
Case DateNovember 16, 1988
CourtUnited States Courts of Appeals, Court of Appeals for the Federal Circuit

Page 710

861 F.2d 710 (Fed. Cir. 1988)

CONVERTORS DIVISION OF AMERICAN HOSPITAL SUPPLY CORPORATION,

Plaintiff-Appellant,

v.

The UNITED STATES, Defendant-Appellee.

Appeal No. 88-1185.

United States Court of Appeals, Federal Circuit

November 16, 1988

Page 711

Allan H. Kamnitz, Sharretts, Paley, Carter and Blauvelt, P.C., New York City, argued for plaintiff-appellant. Donald W. Paley and Ned H. Marshak, Sharretts, Paley, Carter and Blauvelt, P.C., were on the brief for plaintiff-appellant.

Mark S. Sochaczewsky, Commercial Litigation Branch, Dept. of Justice, of New York City, argued for defendant-appellee. With him on the brief were John R. Bolton, Asst. Atty. Gen., David M. Cohen, Director and Joseph I. Liebman, Attorney in Charge, International Trade Field Office.

Before MARKEY, Chief Judge, NIES and MICHEL, Circuit Judges.

MICHEL, Circuit Judge.

DECISION

Convertors Division of American Hospital Supply Corporation (Convertors) appeals the decision of the Court of International Trade, 680 F.Supp. 1562 (Ct.Int'l Trade 1987), granting the government summary judgment in Convertors' action protesting the classification of Convertors' headwear as "headwear, of man-made fibers," Item 703.15, T.S.U.S., [*] instead of as "other headwear," Item 703.75, T.S.U.S. We affirm.

Background

This classification dispute involves disposable headwear produced from a nonwoven material, textile thread, and for some styles, rubber elastic. Convertors ordered the nonwoven material from another company which manufactured the material in accordance with Convertors' specifications. Convertors then cut the material at its plant and sent the material to Mexico where it was assembled into headwear.

The nonwoven material was produced by combining woodpulp; shortlength, uncrimped and untwisted polyester fibers; resin binders; and fire retardants to create a "web" utilizing a wet forming process. The polyester fibers reinforce the web material and reduce the stiffness that would otherwise result from using an all woodpulp web. Both parties agree that the most costly substance in the headwear is the polyester.

Because the headwear contained polyester fibers, the Customs Service classified Convertors' headwear as "headwear, of man-made fibers: not in part of braid: not knit." Item 703.15, T.S.U.S. Under this classification, the headwear was subject to a duty of 25...

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