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HQ 087623

October 25, 1990

CLA-2 CO:R:C:G 087623 c


TARIFF NO.: 6406.10.9090

Robert D. Stang, Esq.
Grunfeld, Desiderio, Lebowitz & Silverman Counselors at Law
12 East 49th Street
New York, NY 10017

RE: Footwear protectors, steel; toe caps, metal, protective

Dear Mr. Stang:

In a letter dated July 30, 1990, you inquired as to the dutiable status of certain steel footwear protectors manufactured in France. Samples were submitted for examination.


The manufacturing process for the footwear protectors is explained as follows:

. . . footwear protectors are incorporated into boots and shoes manufactured with a welt construction or boots and shoes manufactured with an injection molding process. With respect to welted footwear, the protectors are placed on a fabric lined last. Subsequently, each upper is constructed around the footwear protector. Thereafter, the footwear's outersole is welted to the upper to form the finished boot or shoe.

With respect to injection molded footwear, the footwear protector is placed in the portion of the mold that forms the footwear's upper. Thereafter, the rubber/plastic compound is injected into the mold to form a shoe or boot whose upper incorporates the steel protector.

It is your opinion that these footwear protectors are classifiable under subheading 7326.90.90, Harmonized Tariff Schedule of the United States Annotated (HTSUSA), as other articles of iron or steel, other, with duty at the rate of 5.7 percent ad valorem.

Our St. Albans office takes the position that this merchandise is properly classifiable under subheading 6406.99.90, HTSUSA, as parts of footwear, other, of other materials, other, with duty at the rate of 18 percent ad valorem.


Are the steel footwear protectors considered parts for tariff purposes?


You assert that these protectors cannot be classified under Heading 6406, HTSUSA, because they are not "parts" of footwear. You cite the legal principle that "an article is a 'part' if that article is an integral component of the finished product, without which the finished product could not function as intended." You assert that following this principle the protectors could not be considered parts because they are not integral to the boots or shoes to which they are added. Specifically, shoes incorporating the protectors are complete articles without the protectors and are capable of performing all of their required functions without the protectors.

You maintain that Customs has mistakenly assumed that the protectors are toe caps. In support of this position you state that The Dictionary of Shoe Industry Terminology, Footwear Industries of America (1986) defines the term "toe cap" as "[a]n upper section [of the footwear] extending forwards from the vamp to which it is attached (stitched-on cap) or imitated by a seam across a whole-vamp (imitation or mock cap)." You assert that the footwear protectors are not encompassed within this definition for the following reasons:

1. the footwear protectors are not "attached" to the upper as that word is used in the definition;

2. the toe protectors are not a component formed by a seam across the vamp and thus they are not a mock toe cap;

3. toe caps are generally part of the exterior surface area of the upper whereas the footwear protectors are an accessory completely enveloped by the material of the upper; and

4. a boot or shoe without a toe cap would be incomplete, but a boot or shoe without a steel protector is a complete article of commerce that performs all functions required of footwear.

You assert that the difference between toe protectors and toe caps is not just a question of semantics. The Explanatory Notes (EN) to Heading 6406, HTSUSA, lists toe caps as an exemplar of footwear parts. Further, Note 2 to Chapter 64, HTSUSA, provides in part that "the expression 'parts' does not include . . . boot protectors . . . ." Thus, you argue that if the articles in issue are not toe caps, but footwear protectors similar to "boot protectors" referenced in Note 2 above, one must agree that the footwear protectors are excluded from classification under subheading 6406.99.90, HTSUSA.

The EN to Heading 73.26, HTSUSA, states that boot or shoe protectors are included within this Heading. Consequently, you urge classification under subheading 7326.90.90, HTSUSA, because it squares with the intent of the drafters of the Harmonized System.

You indicate that you have been advised that all other countries importing these footwear protectors classify them under Heading 7326. You suggest that Customs classify the protectors in the same manner in order to be consistent with the decision of other Customs Services.


The statement that "[t]he boots . . . are perfectly capable of performing all of their required functions without the protectors" is patently false. An important function of the completed boots is to keep the wearer's toes from being crushed by heavy objects. Months of pain and loss of work while the foot heals are obviously unpopular both with wearers and with employers. Boots with steel toes, due to the extra weight and cost, are used only on footwear worn where broken toes are a real possibility. The steel toes in those situations are "required" either by law or by common sense. It is true that the boot would perform most of its functions as footwear without the insertion of the steel toes, just as automobiles will perform most of their "transportation" functions without seat belts. However, it is obvious to us that seat belts imported by Ford, for example, to be bolted to their car frames are auto parts. Likewise, these steel toe caps, which cannot be removed from the boot without destroying it, are shoe parts.


Additional U.S. Rule of Interpretation 1(c), HTSUSA, provides that "a provision for parts of an article covers products solely or principally used as a part of such articles but a provision for 'parts' or 'parts and accessories' shall not prevail over a specific provision for such part or accessory;"

It is apparent to us that the general class of protective steel toe caps are covered by the above quoted definition of "parts" because they are not just "principally" but "solely" used by footwear makers as a part of a finished boot or shoe. Due to their shape, as a toe cap, there is no use for them other than in footwear, and they will not be purchased separately by the consumer since he will not be able to insert them between the upper and its lining. We note that the items excluded from footwear "parts" by Note 2 to Chapter 64, HTSUSA, are (in general) items whose general class are also used in items other than footwear, e.g. laces and eyelets, or which are separately purchased optional accessories, e.g., certain "ornaments." This is quite consistent with the thrust of Additional U.S. Rule of Interpretation 1(c), HTSUSA. The exclusion seems, in general, designed to avoid having to make the difficult factual determination of whether or not a given shipment of, for example, nails (see EN 6406, exclusion (g)) will be used in footwear as opposed to general purpose nails.

EN (1) to Heading 73.26

We do not agree that EN (1) to Heading 73.26 which reads in part "foot or shoe protectors whether or not incorporating affixing points," includes footwear protectors. These steel toe caps do not protect the boot or shoe. They protect the wearer's toes from injury. We admit that we are not sure what is meant by the term "boot or shoe protectors.". The only items we are reasonably confident are included are heel and toe "taps." They are true "accessories" which are purchased separately and used by some wearers to protect their soles and heels from wear. We note that, unlike steel toe caps, these "taps" are sold both incorporating and not incorporating "affixing points," i.e., nails.


You have submitted no documentation supporting your claim that Customs Services of other countries have issued decisions holding this merchandise to be classifiable under Heading 7326, HTSUSA. Even if we were to accept your claim as true, as we know in U.S. Customs, acceptance of multiple entries under a given HTS is not necessarily any indication of a
conscious position by that Customs Service of the correct classification. Further, we are not bound by a decision or decisions of foreign governments as to the tariff classification of a given product.


These steel toe caps (which is the term usually used for them on invoices and in the trade) could be considered "stiffeners" and therefore excluded from 6406.10, HTSUSA, by the language of the heading. However, EN 6406.06 (I) (A) (2) describes "stiffeners" as items that "may be inserted between the toe cap and the lining to give firmness and solidity at these parts of the footwear." These items will be in the right place, but they give total rigidity (under any conceivable force) not "firmness or solidity." Also, their purpose is protecting the toes, not keeping the material of the upper from "crinkling" or being "floppy" which is the usual function of "stiffeners." Thus, it is our view that they are more than "stiffeners." We also note that each time that these items are referred to in the body of Chapter 64, HTSUSA, e.g., in subheading 6403.30, HTSUSA, the term used is "a protective metal toe-cap," not a "stiffener." If the drafters intended these to be included in "stiffeners," we believe that they would have explicitly said so in the EN regarding "stiffeners" in view of the contrary exception created by their use of another term for them in the body of the same chapter.


The protective metal toe caps are classifiable under subheading 6406.10.9090, HTSUSA, as parts of footwear, uppers and parts thereof, other than stiffeners, other, other, other, with duty at the rate of 9 percent ad valorem.


John Durant, Director

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