HQ 0083876 - Request for Further Review of Protest 2809-7-001405, Dated July 23, 1987, Concerning Baseball Siding Pants - United States International Trade Commision Rulings

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HQ 083876

MARCH 8, 1990

CLA-2 CO:R:C:G 083876 PR

CATEGORY: CLASSIFICATION

TARIFF NO.: 734.56, TSUS

District Director of Customs
P.O. Box 2450
San Francisco, California 94126

RE: Request for Further Review of Protest 2809-7-001405, Dated July 23, 1987, Concerning Baseball Siding Pants

Dear Sir:

This ruling is on the protest that was filed against your decisions in the liquidations on April 24 and May 8, 1987, of entry Nos. 3320005727 and 3320005553, respectively. It concerns the classification of baseball sliding pants produced in Japan.

FACTS:

A sample of the merchandise was submitted. The sample appears to be a man's short underpants-type garment. It has an elasticized waistband and is made of alternating vertical sections of rib knit fabric and knitted mesh fabric. On the inside of each side of the article a padding, approximately 8 1/2 inches by 10 1/2 inches, has been stitched in place. Each pad is approximately 1/2 inch thick and consists of plastic foam material encased in and laminated to plain knit fabrics.

The merchandise was invoiced as "baseball sliding pants" or as "sliding pants". The importer has submitted an affidavit from a well known major league professional baseball player and two statements, one from the equipment manager of the Montreal Expos and the other from the importer. The statements state that the subject merchandise is specially designed and used to protect ball players against injury when sliding into base. The affidavit states (1) that the player requires the following: protection to the upper leg area that is firmly held in place against the leg at the point where slides usually occur; that the protection be sufficient to eliminate or substantially reduce the risks of bruising and abrasions; and that the device be lightweight and flexible to avoid affecting running speed; and (2) that the player has used the sliding pants both in practice and competition because they meet his requirements.

In this connection, we have contacted Ken Beatrice, a noted Washington, D.C., sports authority, who stated he was quite familiar with sliding pants; that they performed a very real purpose in protecting baseball players during slides; that only players who stole a number of bases wore them; that the sliding pants must be light and flexible so as not to interfere with the speed of the player; and that, in his opinion, a player wearing sliding pants would be less likely to hesitate before sliding for fear of injury than he would be if he were not wearing the sliding pants.

ISSUE:

The issue presented is whether the instant merchandise is classifiable under a provision for other baseball equipment, in item 734.54, Tariff Schedules of the United States (TSUS), or under a provision for other lace or net underwear, in item 376.05, TSUS.

LAW AND ANALYSIS:

While the sliding pants have the appearance of underwear, because of the padding, it is obvious that they are only worn when a player has expectations of sliding into base--during a game or during practice. Further, we do not envision that this merchandise will be worn without an athletic supporter beneath it. In our view, because of the limited and specialized usage of this merchandise, and the manner of its usage, sliding pants are neither commonly nor commercially known as underwear. Since tariff terms presumable carry the meaning given them in trade and commerce, this merchandise cannot be classified as underwear. S.G.B.Steel Scaffolding & Shoring Co. v. United States, 82 Cust. Ct. 197, C.D. 4802 (1979).

Item 734.54 is located in Subpart 5D of Schedule 7, TSUS. Headnote 1 to that subpart states, in part, that the subpart does not include wearing apparel, "other than specially designed protective articles such as, but not limited to, gloves, shoulder pads, leg guards, and chest protectors."

Examination of the article in question clearly shows that it is specially designed to be worn under uniform pants and to provide protection to the wearer's hip areas. It would be highly unusual for someone to wear this article without intending to make use of the protection afforded by the foam padding.

While the padding may not be overly thick, it does provide a substantial degree of protection to the covered area. In addition, considering that the sliding pants are worn under another, usually tight fitting, garment, if the padding were much thicker, the sliding pants would affect the speed of the wearer which is of primary importance in stealing bases in a baseball game. Thus, we recognize that the degree of protection afforded by padding in a protective article may require a balance of a number of factors and that all factors must be considered in determining whether an article is prohibited from classification in Subpart 5D of Schedule 7 by Headnote 1(v) to that subpart.

HOLDING:

The instant merchandise is properly classifiable under the provision for other baseball equipment, in item 734.56. The protest should be granted in full. A copy of this ruling should be attached to the copy of the Form 19, Notice of Action, furnished to the protestant.

Sincerely,

John Durant, Director

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