Decision on Application for Further Review of Protest No. 27047002283 of July 7, 1987.

HQ 082750 January 17, 1989 CLA2 CO:R:C:G 082750 CMR CATEGORY: Classification TARIFF NO.: 381.6585 District Director of Customs 300 South Ferry Street Terminal Island San Pedro, California 90731 RE: Decision on Application for Further Review of Protest No. 27047002283 of July 7, 1987. This protest was taken against your classification of men's 100 percent cotton terry cloth wraps under the provision for other men's or boys' ornamented cotton wearing apparel, not knit, in item 381.0890, Tariff Schedules of the United States Annotated (TSUSA), textile category 359, dutiable at 20 percent ad valorem. FACTS: The merchandise at issue are men's 100 percent cotton terry cloth wraps, style 53758, entry numbers XXXXXX and XXXXXX, entered under the provision for other men's or boys' nonornamented cotton wearing apparel, not knit, in item 381.6585, TSUSA, textile category 359, dutiable at 9.4 percent ad valorem. The entries were made November 21, 1986, and December 24, 1986, respectively. A Notice of Action dated February 20, 1987, was sent by the responsible import specialist to the importer advising that the merchandise was properly classifiable under the provision for other men's or boys' ornamented cotton wearing apparel, not knit, in item 381.0890, TSUSA. The merchandise was liquidated on May 1, 1987, as classified at the port in item 381.0890, TSUSA. This protest against the port's classification was timely filed on July 7, 1987. A representative sample of the subject merchandise has been forwarded with this protest. The sample is made of heavy 100 percent cotton woven terry cloth fabric. It is rectangular in shape with turned over hems. The hem at the top of the wrap is about one and  2 three-quarters inch wide with elastic inserted into over 50 percent of the waistband. Nineinch velcro strips are sewn at each end of the wraparound waistband to close the wrap. A square, sixinch deep pocket appears on the left side of the wrap. The top portion of the pocket has eight rows of noncontrasting stitching. ISSUE: Do the eight rows of noncontrasting stitching on the pocket of the submitted men's cotton terry cloth wrap constitute ornamentation for tariff purposes? LAW AND ANALYSIS: Two questions must be addressed to determine whether the stitching on the pocket of the terry cloth wrap constitute ornamentation for tariff purposes. The first is: Does the stitching "impart no more than an incidental, decorative effect? The second is: Do the stitches have a functionality which is primary to any ornamentative nature? United States v. Endicott Johnson Corp., 67 CCPA 47, 50, C.A.D. 1242, 617 F. 2d 278 (1980). If either question results in an affirmative answer, the garment is not considered ornamented for tariff purposes. The noncontrasting stitching in question is not visible except upon close examination. It is the effect caused by the stitching that is visible. In T.D. 56327(93) (1964) a nylon glove with crimping in the back of the glove was classified as not ornamented. The crimping was caused by a thread introduced into the surface of the back of the glove one half inch from the cuff edge. While the crimping was decorative, the thread which caused the crimping was itself not ornamental and was hardly visible. In this case as in the above mentioned case, the stitching is not easily visible. It is the effect caused by the stitching which is decorative, not the stitching itself. Additionally, after examining the construction of the garment we agree with the protestant that the stitching does perform a function that is primary to any ornamentative purpose. The eight rows of stitching serve to attach a separate piece of fabric to the inside of the pocket at the top. The several rows of stitching add a functional degree of stiffness to the pocket and assure that the attached separate piece of fabric lies flat. Since the stitching itself is not ornamental and has a functional purpose, Customs believes that the terry cloth wrap is not ornamented for tariff purposes.  3 HOLDING: The terry cloth wrap is classifiable under the provision for other men's or boys' wearing apparel, not ornamented, of cotton, not knit, in item 381.6585, Tariff Schedules of the United States Annotated, textile category 359, dutiable at the 1986 rate of 9.4 percent ad valorem. The protest should be allowed in full. A copy of this decision should be attached to the Form 19 to be returned to the protestant. Sincerely, John Durant, Director Commercial Rulings Division