us-cbp-cross-rulings-hq-087623•HQ 087623: Footwear protectors, steel; toe caps, metal, protective
HQ 087623: Footwear protectors, steel; toe caps, metal, protective
us-cbp-cross-rulings-hq-087623HQ 087623: Footwear protectors, steel; toe caps, metal, protectiveGuidance
Native CBP ruling rendition. Applicability is fact-specific; modification/revocation relationships and original publisher date are retained. Publisher sentinel year0001 means unknown date, not a historical legal adoption.
HQ 087623
October 25, 1990
CLA-2 CO:R:C:G 087623 c
CATEGORY: Classification
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.
FACTS:
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.
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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.
ISSUE:
Are the steel footwear protectors considered parts for
tariff purposes?
LAW AND ANALYSIS:
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
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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.
FUNCTIONALITY
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.
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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.
TREATMENT BY OTHER NATIONS
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
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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.
STEEL TOE CAPS V. STIFFENERS
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.
HOLDING:
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.
Sincerely,
John Durant, Director
Commercial Rulings Division
6cc AD NY Seaport
1cc Dist Dir St Albans Vt.
1cc James Sheridan NY Seaport
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