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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).

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
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

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