HQ 0085059 - Decision on Application for Further Review of Protest No. 2809-7-000941. - United States International Trade Commision Rulings

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HQ 085059

November 14, 1990

CLA-2:CO:R:C:G 085059 SR

CATEGORY: CLASSIFICATION

TARIFF NO.: 735.12

District Director of Customs
555 Battery St.
P.O. Box 2450
San Francisco, CA 94126

RE: Decision on Application for Further Review of Protest No. 2809-7-000941.

Dear Sir:

This protest was filed against your decisions in the liquidations on May 7, 1987, of entry Nos.:

Entry Numbers Entry Dates

066-86-254137-0 dated 3-21-86
066-86-254194-3 dated 5-1-86
066-86-254113-4 dated 3-4-86
066-86-254-080-5 dated 2-4-86
066-86-254070-8 dated 1-29-86
066-86-254056-2 dated 2-13-86
066-86253992-6 dated 11-22-85
066-86253963-8 dated 11-4-85
066-86253983-2 dated 11-18-85
K54-000078-7 dated 11-6-86

These entries cover shipments of Incredibal baseballs and softballs.

FACTS:

The merchandise at issue is the "Incredibal Baseball", and "IncrediBal Softball" safety balls. The Incredibal baseball,
item number I09, measures 9 inches in circumference; the softball, item number I12, is 12 inches in circumference. Both balls look like regulation balls; however, they are cloth balls that are spongy and weigh less than traditional balls. They travel 3/4 the distance as do traditional balls. The outer covering of the ball is knit fabric with heavy raised seams that imitate the look of a real ball. The balls are soft and spongy in order to prevent injuries. The Incredibal baseballs are used by "pinto" and "mustang" little league teams which are made up of children aged 9 and under. They are used for practice for the older little leagues. No information was provided as to the use of the Incredible softball.

ISSUE:

Whether the balls at issue are classifiable as baseball equipment or as other balls for games and sports?

LAW AND ANALYSIS:

The balls at issue are not the same as traditional baseballs. They are much lighter and only go 3/4 the distance of the normal baseball. They would not travel the same as would a traditional baseball because of the heavy raised seams. These balls are used in little leagues for the youngest age children. Youth leagues for small children usually use equipment that will not injure the children, such as whiffle balls or T-balls; however, these are not considered to be baseball equipment.

The inquirer states that a baseball does not have to be a hard "regulation," "traditional," or a "standard" baseball. The inquirer claims that this is so because the court in Mego Corp. v. United States, 75 Cust. Ct. 190, 199, C.D. 4574 (1974), quoted the following definition of baseball as defined by Webster's Third New International Dictionary, Unabridged, (1963):

A game played with a ball, bat, and gloves between 2 teams of 9 players each on a large field centering upon 4 bases that form the corners of a square 90 feet on each side, each team having a turn at bat and in the field during each of the 9 innings that constitute a normal game, the winner being the team that scores the most runs.

The inquirer states that because this definition merely requires a ball and not a baseball or a regulation ball, that any ball used in the game meets the definition of a baseball. This may be true, however, the pinto and mustang little league games in which the Incredibal baseball is used are not regulation games as provided in this definition. The little league teams for smaller children usually play with more than 9 players on the field at one time, a diamond smaller than 90 square feet, and fewer than 9 innings. Therefore, the ball mentioned in the dictionary definition is irrelevant to the balls at issue.

The inquirer states that the balls at issue are "junior editions" as defined in Mego Corp. v. United States, 75 Cust. Ct. 108, C.D. 4614 (1975). This court differentiated between "junior editions" and "imitations". It held that smaller flimsier gloves were junior editions. However, gloves are different than baseballs. The only regulation on gloves is that the fingers cannot be longer than the regulation length. Whereas baseballs are very specific. They measure between 2.86 and 2.94 inches in diameter. They are made of a composition-cork nucleus that is encased in two thin layers of rubber, one black and one red, surrounded by 121 yards of tightly wrapped blue-gray wool yarn, 150 yards of fine cotton yarn, a coat of rubber cement , and a cowhide exterior, with 216 slightly raised hand-sewn stitches.

The balls at issue are not nearly as substantial as a regulation ball; therefore, the balls at issue are merely imitations of the real thing. As stated in Mego, supra, imitations are not classifiable as baseballs. When the court decided Mego the possible tariff classifications for this merchandise were baseballs or toys. Now there is a provision which provides for balls for games or sports not previously provided for in the foregoing provisions. This is the appropriate provision for the balls at issue.

The balls at issue are very similar to the rag balls at issue in Headquarters Ruling Letter (HRL) 070582 dated April 28, 1983. This ruling classified the textile balls as other balls for games or sports under item 735.12, TSUS. The rag balls appear to be identical to the balls at issue. They are safety balls that are used by little league teams. They are lighter than regular baseballs and travel only 3/4 as far. They are the same size as regular baseballs and softballs but they have heavy raised stitching. They were not considered to be baseball equipment.

HOLDING:

The Incredibal baseball and softball at issue are classifiable under item 725.12, TSUS, which provides for beach balls, play balls, toy balls, and other balls for games or sports, not provided for in the foregoing provisions of this subpart, other, other.

The protest is denied. A copy of this decision should be attached to the Form 19 Notice of Action to satisfy the notice requirement of section 174.30(a), Customs Regulations.

Sincerely,

John Durant, Director

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