HQ 080522: Decision on Application for Further Review of Protest No. 1001-6-000048

Native CBP ruling rendition. Applicability is fact-specific; modification/revocation relationships and original publisher date are retained. Publisher sentinel year0001 means unknown date, not a historical legal adoption.

                                      HQ 080522

                                  February 23, 1989


          CLA-2 CO:R:C:G 080522 JLJ

          CATEGORY: Classification

          TARIFF NO.: 383.47

          Area Director of Customs
          JFK Airport, Building 178
          Jamaica, New York 11430

          RE:  Decision on Application for Further Review
               of Protest No. 1001-6-000048

          Dear Sir:

               This protest was filed against your decision in the
          liquidation of JFK entry No. 85-176434-6 of April 12, 1985,
          covering a shipment of ladies' 100 percent cotton woven pants
          manufactured in Hong Kong.

               This ruling concerns whether two strips of textile fabric
          with D-rings attached at the waist of the garment render the
          pants ornamented for textile purposes.

          FACTS:

               A sample of the ladies' 100 percent cotton woven pants,
          Style No. 00120F, was submitted along with the protest.  The
          pants feature a pleated front, a double front pocket on either
          side, a rear pocket with welting and snap closure, a 2-3/8 inch
          wide waistband, a fly front and a double tab front waistband
          closure.

               The disputed feature is the double tab closure with D-rings.
          Two textile loops, each holding two D-rings, have been sewn into
          the free end of the waistband.  Corresponding tabs measuring
          approximately 3 inches in length have been sewn to the waistband
          to the wearer's right of the textile loops with D-rings.

               You claim that the double tab closure is primarily
          ornamental and that the pants are classified under the provision
          for other women's, girls' or infants' wearing apparel,
          ornamented, of cotton, other, not knit, suits, vests, trousers,
          slacks, and shorts, in item 383.06, Tariff Schedules of the
          United States (TSUS).














                                         -2-


               Counsel for the protestant claims that the double tab
          closure is primarily functional and that the pants are classi-
          fied under the provision for other women's, girls' or infants'
          wearing apparel, not ornamented, of cotton, not knit, other,
          blouses, shirts, suits, trousers, slacks and shorts, in item
          383.47, TSUS.

          ISSUE:

               Does the double tab closure render the pants ornamented for
          tariff purposes?

          LAW AND ANALYSIS:

               You argue that the double tab closure with D-rings serves no
          real functional purpose on the pants because the zippered fly
          front is secured by two hook and eye closures.  You claim that
          the double tab closure creates a decorative effect and renders
          the pants ornamented for tariff purposes.

               Counsel for protestant argues that the double tab closure is
          primarily functional because it serves to flatten the waistband
          fabric, holding it secure, and to tighten the waist to adjust the
          fit of the trousers.

               Headnote 3(a)(iii), Schedule 3, TSUS, provides that:

               For the purposes of the tariff schedules --

               (a) the term "ornamented", as used with reference to
                   textile fabrics and other articles of textile materials,
                   means fabrics and other articles of textile materials
                   which are ornamented with --

                     *          *           *           *

                   (iii) lace, netting, braid, fringe, edging, tucking, or
                         trimming, or textile fabric....[Emphasis added]

          By virtue of Headnote 3(a)(iii), supra, the double tab closure
          with D-rings could be found to be ornamentation.

               However, the mere listing of a feature (i.e., textile
          fabric) in Headnote 3(a)(iii) does not automatically result in a
          determination that the feature constitutes ornamentation for
          tariff purposes.  It must first be ascertained that the feature
          visibly adorns, embellishes, or decorates the article on which
          the feature is located.  United States v. Endicott Johnson, 67
          CCPA 47, C.A.D. 1242 (1980).  Next it must be ascertained whether












                                         -3-


          the feature has a utilitarian purpose.  If so, it must be
          determined that the feature is primarily decorative and only
          incidentally functional in order for the feature to constitute
          ornamentation.  Blairmoor Knitwear v. United States, 60 Cust. Ct.
          388, C.D. 3396 (1968).

               While the double tab closure does impart a slightly
          decorative effect to the pants, we find that it is primarily
          functional in that it serves the utilitarian purpose of
          tightening the pants at the waist.  Inasmuch as the double tab
          closure is primarily functional, it does not constitute
          ornamentation.

          HOLDING:

               We find that the double tab closure does not constitute
          ornamentation.  The pants are classified in item 383.47, TSUS.

               The protest is approved in full.

               A copy of this decision should be sent to the protestant
          along with the CF 19 Notice of Action.

                                          Sincerely,




                                          John Durant, Director
                                          Commercial Rulings Division































          6cc: A.D.,N.Y. Seaport (NIS 360)
          2cc: Chief, CIE
          1cc: Reg. Comm. N.Y. Region
          1cc: John Durant
          1cc: CITA
          1cc: Reg. Trade Prog. Divi.
          JLJohnson:tj:typed 08/11/88