CLA-2 CO:R:C:G 083876 PR
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
Commercial Rulings Division