*3 6404.19.20 and except footwear having a DYK, Before MAYER, REYNA, foxing or foxing-like band wholly or al- Circuit Judges. most wholly of rubber or plastics applied MAYER, Circuit Judge. at molded the sole and overlapping upper[.] Deckers (“Deck- Outdoor Corporation ers”) appeals a final judgment of the Unit Subheading 19.35 (emphasis ed States Court of International Trade Deckers filed protest' challenging the
(“Trade Court”) that held that pull-on classification of the merchandise, arguing boots were properly classified under sub should be reclassified under heading 19.35”) 6404.19.35(“Subheading HTSUS subheading (“Subhead- 6404.19.90 the Harmonized Tariff Schedule of the ing 19.90”), a basket provision which cov- United (“HTSUS”). States See Deckers “[fjootwear ers with outer soles rubber Corp. Outdoor States, ... and uppers of textile materials” that is (Ct.Int’l F.Supp.2d 1324 Trade “[v]alued [at] over $12/pair.” Merchandise (“Trade Decision”). Court Because we classified under Subheading 19.35was sub- conclude that the merchandise at issue was ject to a duty rate of valorem, 37.5% ad correctly classified as “footwear slip- whereas merchandise classified under Sub- on type” under Subheading 19.35, af we heading 19.90was subject to a duty rate of firm. 9% ad valorem. See Trade Court Deci- sion, 844 F.Supp.2d at BACKGROUND I.
Deckers imported UGG® Classic Cro- After Customs denied its protest, Deck- chet boots into the United States in 2006 ers filed suit at the Trade Court. Deckers and 2007. These boots have a knit upper argued that the term “footwear of slip- portion and a rubber They sole. do not on type” as used in Subheading only 19.35 laces, buckles, or other fasteners. encompasses footwear that does not ex- The parties agree that the merchandise in tend above the ankle. Id. at question “is boots, sold as that the boots support, Deckers cited defini- can hands, with the and that tions of the in which the the boots extend above the only ankle[.]” type of footwear specifically men- Trade Court tioned was a “shoe.” See id. at 1332. internal pointed to language from omitted). Senate Finance Report Committee on the Corp. v. LeMans tariff classifications. Negotiations Trade
Multilateral (Fed. 1311, 1315 position final 660 F.3d U.S. United “[t]he which stated Cir.2011); Inc. v. categories for boots Cummins provides separate Comm, Fin., (Fed.Cir.2006). A S. slip-on footwear....” at the Mul- Being requires two under Negotiated decision Agreements classification (1) Negotiations determining proper Geneva— lying steps: tilateral Investigation No. is a provisions, Int’l Trade Comm’n tariff (Comm. 332-101, Print Cong. determining law; 96th question of *4 ”). (“Trade 1979) Report Negotiations disputed heading under which correct fall, question a of fact. goods which is ar- rejected Deckers’ Trade Court The Outer Circle Prods. government’s granted guments (Fed.Cir.2010). 1323, 1325 In review F.3d court summary judgment. The motion classifications, we accord defer ing tariff Definitions, Treas. Footwear noted that ruling in classification ence a Customs’ 46, & Dec. No. 93-88, 27 B. Cust. Dec. un “power persuade” to its proportion (Oct. 108, at *24 LEXIS 1993 CUSBUL in articulated Skidmore principles der 93-88”), 25, (“Treasury a Decision 161, Co., 134, 65 v. & 323 U.S. im- designed assist publication Swift Customs (1944). v. See States L.Ed. United re- in classification porters 121 S.Ct. Corp., Mead 533 U.S. that the specifically provides quirements, (explaining boot which “[a] term “ruling a Customs’ tariff classification court deter- on.” The must be according eligible respect is to claim mined, reviewing several after persuasiveness”). “slip-on,” that “the definitions of the determinative of fasteners is absence B. The HTSUS a slip-on.” is not
in an item is or whether at Trade Court organized by The HTSUS concluded, moreover, that court 1332. The headings headings has and each of these of laces or “without the use the clause subheadings. Orlando Food one or more fasteners” that follows buckles or other 1437, 1439 v. Corp. United in slip-on type” of the phrase “footwear (Fed.Cir.1998). headings contain explain and Subheading 19.35 “serves to merchandise,” categories “general of the upon” elaborate subheadings provide “the more whereas (internal quotation Id. at 1331 “slip-on.” goods of the particularized segregation omitted). the Classic Cro- Because Id. The tariff clas category.” within each buckles, laces, or other have no chet boots of merchandise under sification fasteners, con- the Trade Court functional by principles set governed HTSUS they properly were classified cluded Interpreta Rules forth in General Subheading Id. 1332-33. under 19.35. (“GRIs”). LeMans, 660 F.3d at tion with timely appeal then filed a applied must be These GRIs under 28 jurisdiction Int’l, this court. We Arko Foods Inc. numerical order. 1295(a)(5). (Fed. § U.S.C. States, 654 F.3d Cir.2011). II. Discussion asserts that Cus- appeal, Deckers On
A. Standard
of Review
the Classic Cro-
classifying
erred in
toms
type”
as “footwear
chet boots
the Trade
We review de novo
it
In
Subheading
support,
19.35.
summary judgment on under
grant
Court’s
First,
principal arguments.
argument
advances two
Deckers’
that boots
are excluded from
scope
that the term “footwear of the
Subheading
contends
19.35 is contravened
Subheading
plain language
slip-on type” as used
19.35
Subheading
statute.
19.35
not
only applies to shoes and does not encom-
shoes,
limited to
but instead covers
view,
pass
“[f]ootwear
boots.
Deckers’
“foot-
slip-on type.”
wear of the
slip-on type
category
is a
foot-
(emphasis
19.35
As Deckers ac-
wear,
shoes,
specifically sub-category
knowledges, the term “footwear” plainly
Second,
but not a sub-category of boots.”
encompasses both shoes and boots.1 See
Deckers asserts that because the Classic
Appellant
Br. of
(acknowledging
“pulled on”
Crochet boots must be
Classic Crochet boots are “footwear with
hands, qualify
as “slip-on”
do
plastic”).
outer soles of rubber or
Certain
footwear.
provisions
HTSUS
specifically
refer
arguments
find neither of
per-
We
these
shoes. See
(referring
HTSUS 6404.11
statutory language,
suasive. The
the defi-
*5
shoes,”
shoes,”
“tennis
“basketball
in Treasury
nition
contained
“gym shoes”); id.
(referring
6403.19.30
to
93-88,
Decision
the common and
com-
shoes”).
“golf
provisions
Other HTSUS
“slip-
mercial
of the term
specifically
refer
to boots.
See id.
on,” all support the Trade Court’s determi-
6402.12.00
to
(referring
“[s]ki-boots” and
boots”).
nation
Classic Crochet boots fall
“snowboard
In drafting Subhead-
squarely
19.35, however,
scope
Subheading
ing
within the
Congress did not use
“boot,”
19.35.
the term
“shoe”
instead
employed the broader term
If
“footwear.”
Congress had
that Subheading
intended
Statutory
Language
C. The
shoes,
only
19.35 apply
to
rather than to
Congress
clearly
has
“[W]here
stat
footwear,
types
various
it
readily
could
statute,
in
language
ed its intent
of a
a have inserted the word
into
“shoe”
inquire
court
not
should
further into the
States,
statute. See
Russello
United
Corp.
statute.” Pillowtex
16, 23,
296,
464
104 S.Ct.
U.S.
1370,
171 F.3d
(1983) (When “Congress
partic-
17
(Fed.Cir.1999);see
Conn. Nat’l Bank v.
language
ular
one section
a statute
Germain,
249, 253-54, 112
503 U.S.
it in
but omits
another section of the same
(1992) (‘We
1146, 117
L.Ed.2d
have Act, it
generally presumed
that Con-
again
stated time and
that courts must
intentionally
gress
purposely
acts
presume
says
a
a
legislature
that
in statute
(cita-
disparate
inclusion or exclusion.”
what means and
in a statute
means
what
quotation
tions and internal
omit-
marks
there.”).
ted)).
it says
recognizes
GR.I 1 thus
In arguing
Subheading
that
19.35
step
that the first
in determining whether
boots,
excludes
Deckers excises the word
goods have been
to
properly classified is
statutory
“footwear” from the
text. See
language
examine the
330,
relevant Reiter
Corp.,
v. Sonotone
U.S.
headings
subheadings.
339,
2326,
HTSUS
See
99 S.Ct.
give
Subheading 19.35. See
Menasche,
slip-on type” under
used.”);
States v.
gress
(June 27,
Serv., N.Y. L85617
Customs
U.S.
528, 538-39,
75 S.Ct.
U.S.
2005) (concluding
that a “women’s
(1955) (“The
principle
cardinal
L.Ed.
classified under
properly
boot” was
fashion
save and
statutory construction
19.35);
Serv.,
Subheading
Customs
obligated
“to
a court
destroy,” and
2004)
(concluding
(Sept.
N.Y. K88830
effect,
every
clause
possible,
if
give
pre-
boot” with “a
a “women’s
(citations and internal
of a statute.”
word
up-
material
dominately stretch knit textile
omitted)).
under Sub-
properly classified
per” was
undermined
is further
position
Deckers’
Serv.,
19.35);
N.Y.
heading
U.S. Customs
93-88,
specifi-
which
Treasury Decision
(June
1998)
(concluding
a
C88564
in-
provides that the
cally
black,
height pull-
over the ankle
“women’s
pull-on
boot:
cludes
on,
boot”
upper
textile
dress
elasticized
includes:
A
Subheading
under
properly classified
was
on.
1. A boot which must
Serv.,
19.35);
N.Y. D81445
U.S. Customs
(concluding
“wom-
(Aug.
gores
with elastic
2. Footwear
properly
pull-on fashion boot” was
an’s
or with
get
must
stretched to
it on
19.35).
under
classified
top
edge
into the
elastic sewn
consistency
interpretation
of Customs’
upper.
fabric of the
*6
“slip-on”
to enhance
the term
serves
lace around
with a shoe
3. Footwear
power
interpretation.
of that
persuasive
clearly not
upper
which is
top
LP
Dell Prods.
functional, i.e., the
will not be tied
lace
(Fed.Cir.2011); see also
F.3d
taking
it
putting
on or
and untied when
States, 407
Co. v. United
Warner-Lambert
it off.
(Fed.Cir.2005)
(explaining
any
It
not include
boot or shoe with
does
degree of
afforded
deference
laces, buckles,
or oth-
any
straps, snaps,
depends on the
classification
Customs’
closed,
closure,
probably
er
which are
“consistency of the classification
earli-
i.e., tied, buckled,
etc., after the
snapped,
pronouncements”).
and later
er
puts
wearer
it on.
dispute
defini-
does
93-88, 1993 CUSBUL
Treasury Decision
“slip-on”
Treasury
contained
De-
tion
LEXIS,
(emphasis
at *24-25
boot
expressly
“[a]
cision 93-88
in Trea
While the definitions contained
argues,
must be
on.” It
how-
pulled
not to be con
sury Decision 93-88 “are
ever,
relying
in'
the Trade
erred
Court
rulings,”
strued as Customs
“in-
the footwear
on
definition because
by
least 1993
been used
Customs since at
boot,
dustry
any type of
does not consider
are
im
specifically designed
and
assist
on,
to be
especially
one that has
classifica
porters
“in better
disagree. As
slip-on type.”
We
determined,
The
Id. at *1.
Trade
requirements.”
correctly
tion
the Trade Court
previously
Court has
determined
be used
refer to both
can
Treasury
definitions contained in
Deci-
footwear
and boots. See Trade Court
shoes
(“[I]t
“persuasive
sion,
read
is
Decision 93-88 are
when
at 1332-33
F.Supp.2d
commonly
together
provision.”
‘slip-on’
with the tariff
Carri
clear that the term
ni,
Int’l
refer
shoes and boots....
Inc. v. United
25 Ct.
used to
to both
(2001).
reading of
narrow
Significantly,
Customs
[Deckers’]
cramped.”). When
‘slip-on’ unjustifiably
classified boots without
repeatedly
has
court,
govern
provides
it
before the trial
That lexicon
that a
was
examples
plain
dressy
from com
provided
ment
several
pump
lacings
“[a]
without
demonstrating that foot
mercial websites
or other
worn
fastenings,
men or
either
commonly
wear retailers
refer
boots as
Any
women.
shoe without fastenings.”
“slip-ons.”
government
noted that
Court,
When it was before the Trade
how
Shopzilla
advertises an UGG®
website
ever, the government cited to other dictio
specifi
“slip-on” boot. The Orvis website
nary definitions that define “slip-on” more
Slip-On
cally
Sheeps
states that “UGG®
broadly. These definitions make clear
“Ugg’s best-selling
kin Boots” are
winter
that while the term “slip-on” certainly in
boots,” and the Zappos website states that
shoes,
cludes
encompasses
various
easy
Newbreak boot has “an
UGG®
items,
gloves, pull-on
other
such as
gar
Similarly,
silhouette.”
Robert ments,
girdles.
See Trade Court De
Frost Fine Footwear website describes the
cision, 844
F.Supp.2d
(noting
“Ugg
Ayer Slip-on
Australia
Boot” as “[a]
the items
as “slip-ons”
described
in various
pull-on boot” that can be taken
classic
“on
“a garment
dictionaries include
can]
[that
Perhaps
signifi
with ease.”
off
most
slipped
head,”
off
over the
government produced
cantly,
evidence
“a
“pullover,”
glove or shoe without fasten
showing that a search for
term “slip-
([such]
“a
ings,”
garment
a girdle)
on”
UGG® Australia officialwebsite
steps
pulls
that one
up”
into
including
“return[ed] results
over-the-an
omitted)).
and internal
Brockman,
kle footwear such as the Men’s
Because there
competing
II,
Leighton,
Men’s
Women’s Sundance
definitions of
“slip-on”—and
the term
Classic
Women’s
Mini.” Trade Court many of those definitions are not limited to
(footnote
at 1329
correctly
shoes—the Trade Court
declined
omitted). Given that several
retail
online
to limit the term “footwear of the slip-on
footwear,
ers describe boots as
type” to shoes. See Intercontinental Mar
*7
reject
we
Deckers’ assertion that the foot
Corp.
ble
381 F.3d
industry
any
wear
does not consider
type
(Fed.Cir.2004)
(refusing to limit the
“of the slip-on type.”
boot
be
term
“geological
“marble” to its
definition”
LeMans,
(“[W]e
1371 “slip-on” perfluous refer especially part tive is used another of the same-statuto (or few) scheme”); ry or that have Corley “shoes clothes” “no v. 556 303, 314, fasteners and therefore able to be U.S. 129 [are] put quickly”); (emphasizing on and taken off Webster’s that a “statute (Una Dictionary New- Int’l Third should construed so that given effect is 1993) (defining ed. as bridged provisions, “an to all its so that part no will be clothing easily slipped inoperative superfluous, article is or insignif void or off,” such “a glove as shoe without icant” and internal omitted)). fastenings”); Complete Footwear Dic marks at tionary (stating that a Summary Judgment E. dressy plain pump lacings without
“[a]
fastenings”);
or other
Webster’s New
dispute,
a classification
Dictionary
Language
World
of the Am.
grant
summary
judgment is appropriate
(2d
1974) (stating
coll.
that “slip-
ed.
no genuine
where there is
as
dispute
“easily
off,
put
on” means
on or taken
nature
the merchandise and the classifi
garment
shoes without laces or a
to be
cation determination turns
proper
on the
head”).
on or
over
slipped
off
scope
of the relevant tariff
provisions.
Lomb,
Bausch &
Inc. Unit
Furthermore,
proffered
Deckers’
(Fed.Cir.
ed
F.3d
interpretation
“slip-on
of the term
foot
'
1998);
Cummins,
see also
language
wear” would render other
(emphasizing that “when the nature of the
Subheading
superfluous.
19.35
Subhead
merchandise
undisputed
the classifi
“[fjootwear
ing
specifically
19.35
collapses entirely
cation issue
ques
into a
open
with ...
heels.” Items of footwear
law”). Here,
tion
genu
there
no
were
are,
open
quite obviously,
that have
heels
ine issues of material fact regarding the
generally easy
step
into
using
without
physical
salient
characteristics of
Clas
Indeed,
the hands.
the UGG® Australia
sic
contrary,
Crochet boots. To the
depicts
types
official website
several
government had conceded that the boots
“scuffs,”
slippers, clogs, and
which have
Thus,
had to be
hands.
open heels and which could therefore be
parties’ dispute
resolution of the
centered
put
readily
on without use of the hands.
on the
“footwear of
See J.A.
If we were
accept
165-78.
statutory
type,”
question of
argument
Deckers’
footwear
Lomb,
interpretation. See Bausch &
is footwear that can
stepped
into with
(“[S]ummary
F.3d at 1365
judgment
ap
hands,
using
out
language
then the
propriate
genuine dispute
when there is no
referring
19.35
to “footwear
underlying
as1to the
factual
issue
exact
open
with ...
heels”
be rendered
would
is.”).
ly what the merchandise
superfluous because such footwear would
*9
already be included within the
may
definition of
The Trade
examine
Court
slip-on type.”
of
many
“footwear
the
When in
to
resources
ascertain the common
terpreting
provisions,
a
HTSUS
must
commercial
of
give
every
to
particular
strive
effect to
word
the
tariff term. See Rocknel Fas
statutory
tener,
text. See
v.
Marx Gen. Revenue
Inc. v.
267 F.3d
—
(Fed.Cir.2001) (“To
U.S.-,
1166, 1178,
Corp.,
S.Ct.
133
1356-57
ascertain the
(2013) (explaining
term,
may
als.”
omitted)). Here,
industry
Deckers had am
that the footwear
does
tified
regard
to
submit evidence
a boot to be a
too
ple opportunity
consider
understanding of
any
common
the
issue of
ing
genuine
the
to raise
speculative
type”
the
when it sub
of
“footwear
fact.
Davis v. Brouse McDo
material
government’s
(Fed.Cir.
opposition
well, L.P.A.,
mitted
summary judgment.
for
Deckers
motion
unsupported
(explaining
“[a]n
the trial court with various dictio
provided
and does not create a
opinion
cannot
of
definitions
the
nary
fact”);
of material
v.
genuine issue
Sitrick
testimony
the
of
deposition
also submitted
Dreamworks, LLC,
Young
a
Young,
employee.
Deckers
Peter
“[cjonclu-
(Fed.Cir.2008)
(emphasizing
to
person
that a
would be unable
stated
sory expert assertions cannot raise triable
his or her foot into
Classic
“slide”
summary judg
fact on
of material
issues
boot,
to
but
have
Crochet
would instead
ment”);
Lob
Liberty
also
see
Anderson
on.
96-97. Such tes
“pull”
boot
J.A.
Inc.,
242, 256,
by,
however,
insufficient
create
timony,
was
56(e)
(“Rule
itself
L.Ed.2d 202
fact given
issues material
any genuine
a
opposing
properly
that a
provides
party
government had
that the
conceded
summary
supported
judgment
motion for
pulled
were
on with
Classic Crochet boots
may
upon
allegation
not rest
mere
or deni
hands.4 See Trade Court
must
forth
pleading,
als of his
set
F.Supp.2d at 1327.
showing
genu
that there
a
specific facts
if
had
Deckers asserts that
the case
trial.”).
ine
for
issue
produced
trial
have
proceeded to
it would
testimony
industry
who
from
witnesses
III. Conclusion
“in-
opined
that the footwear
would
Accordingly,
judgment of the United
boot,
dustry
any type
not consider
does
Trade is af-
States Court
International
on,
especially
one
has
firmed.
fails,
slip-on type.”
AFFIRMED
however,
identify any
purport-
of these
industry
ed
witnesses. Nor did Deckers
Opinion
by
court
Circuit
filed
any
declarations from
offer
affidavits or
Judge MAYER.
when it was before the
such witnesses
circumstances,
opinion
Dissenting
filed Circuit
such
Trade Court. Under
Judge
un-
DYK.
unsupported assertion that
Deckers’
opportunity
Young
The
also
staled that he did not believe
Trade Court
had the
testimony
Stacey
deposition
consider
“slip-
pull-on
qualify
boot
that a
could
a
Kalkines,
specialist
import
employed by
an
"pull-on”
“slip-
the terms
on” because
acknowledged
Customs. Kalkines
that no
"contradictory.”
on”
J.A. 103.
sample
one from Customs had tried on
opportunity
fully
had
Trade Court
classifying
the Classic Crochet boot before
Young’s deposition testimony be-
consider
boots under
19.35. J.A. 116-17.
granting
government's
motion for
fore
however,
explained,
Kalkines
that Customs
summary judgment.
See Trade Court Deci-
qualify as “foot-
determines whether boots
sion,
The court de-
type” by ascertaining
wear
termined, however,
defi-
Id.
whether
the boots have fasteners.
Cus-
provided by
government
nitions
particular
whether
toms could determine
Treasury
provided
Decision
a more
93-88
*10
"by a
boot had fasteners
visual examination
persuasive interpretation
"slip-
of the term
trying
put
the boot on.”
Id. at
without
to
on footwear”
19.35.
(that
DYK,
Judge,
is,
dissenting.
Circuit
tions:
it must be a shoe
not a
boot);
on;
high-cut
it must be
to
easy
slip
appeal requires
to determine
This
us
and it must
or
no fasteners.
phrase
slip-
“footwear of the
few
whether
that
to
foot
type,
on
is held
without the
Both
specialized
general-purpose
fasteners,”
use of laces or buckles or other
support
dictionaries
this
definition
“foot-
in subheading 6404.19.35 of the Harmon-
type.”
wear of the slip-on
industry
Two
ized
Tariff Schedule
the United States
as,
“slip-on”
references define a
respective-
(“HTSUS”),
that
covers boots
rise above
ly, “[a]ny shoe without fastenings,” and
the ankle and that must
using
be
on
“[a]ny
into
merely
shoe
which the wearer
majority
the hands.
interprets
slips
foot,
held without
lac-
benefit of
subheading
covering
as
“that
any footwear
ing,
or
fastening.”
bucklesf]
other
is held to the foot
without
use of laces
Complete Footwear Dictionary
The.
respect-
or buckles or other fasteners.” I
(William
ed.,
2000)
A. Rossi
2d ed.
(empha-
fully disagree.
Congress
If
had
meant
added);
sis
The Dictionary
Shoe Indus-
footwear,
subheading
to cover all such
(Ruth
try
ed.,
Terminology
J. Schachter
simply
it could
have written “footwear that
1986)
added).
(emphasis
One general-pur-
to
held
the foot without the use of laces
pose
“slip-on”
defines
as an ad-
fasteners,”
or buckles or other
omitted
jective meaning “easily put on or taken
slip-on
the words “of
It
type.”
did
laces,”
off, as
without
or
aas
noun
shoes
so,
subheading
do
suggesting
“a
describing
slip-on
garment.”
shoe or
limited,
more
and in particular that
New
Dictionary
Webster’s
World
slip-on
“of the
type”
limiting.1
words
are
(2d.
Language
college
American
ed.
In
tariff
interpreting
provisions, we look
1984)
added).
(emphasis
general-
Another
to
the common and commercial
purpose dictionary
defines
as an
“[Tjariff
gen
the terms involved.
acts are
adjective applied “esp[eeially
or
to] shoes
erally to be
according
construed
clothes,”
(or
meaning “having
few)
no
commercial
of the terms
put
and therefore able
Arthur,
fasteners
597,
employed,”
v.
Swan
103 U.S.
quickly”;
and taken
the same dictio-
“[ajbsent
off
(1881),
Furthermore, adjusting in its the definition, securely ensconced.” See ex- are and commercial common States, 844 Corp. specialized One dic- Outdoor boots. high-cut cludes (Ct.Int’l 1324, 1326 including “chiefly F.Supp.2d as “shoe” tionary defines added); United States Br. 2-3. (emphasis high-tops or versus low-cut footwear two of the three boots,” The boots therefore fail dictio- general-purpose two while as, being for of the a criteria “footwear respectively, “shoe” naries define shoes, they not are they are and reaching type”: ... not “covering for the foot on. ankle,” covering easy slip and “durable above the foot, ... especially] one for human the statutory lan interpretation This The Com- about to the ankle.” reaching against violate the rule guage does not at 155 Dictionary, supra, plete Footwear phrase renders the surplusage because it added); (emphasis The New Amer- Oxford the use of is held to the foot without “that Dictionary, supra, (emphasis at 1566 ican sur or buckles or other fasteners” laces added); Heritage The American Dictio- fact, surplus, these are not plus. words 1982). (2d nary college ed. A third rather to exclude shoes but serve “shoe” general-purpose dictionary defines “few,” slipped that have as easily on but broadly, covering “an outer more as “no,” fasteners. See The New opposed leather,” usu[ally] the human foot made Dictionary supra, at American Oxford exemplary sub-definitions two of (or “having as no (defining (“an footwear outer are limited low-cut put few) able to be fasteners therefore or covering reaching foot to the ankle add quickly” (emphasis off taken thereabouts,” “a foot low-cut outer ed)). Nor, contrary majority, does ”). boot, covering-compare Web- oxford statutory “foot reading of the this Dictio- ster’s Third New International that is held to the slip-on type, wear nary, (emphasis supra, at use laces or foot without the buckles surplus sepa the other fasteners” render does not contest government subheading rate clause of same these definitions set forth open open meaning. covers with toes “[flootwear common and commercial term’s open-heel some footwear Rather, government heels.” While emphasizes issue, statutory fall within the term at may fact definitions that several of “shoe” may straps or other such footwear acknowledge that the term sometimes des- place. holding fasteners the foot ap- It is other ignates an above-the-ankle boot. record, Indeed, government’s own set parent from definitions in Definitions,” which however, un- both usage that this of “shoe” is “Footwear majority cite as au government or disfavored. common case, “open in this defines thoritative adopted this common and com- Having including any shoes in heeled shoes” slip- mercial definition of “footwear of the of the wear part “all or of the back it is at issue type,” clear the boots definition that heel can be seen”—a er’s subheading fall appeal do not within clearly strap for shoes with rear allows government has conceded 6404.19.35. The Definitions, Footwear or fastener. See “boots”; are, indeed, that the boots 93-88, Dec. 27 Cust. B. & No. T.D. ankle; and that “[t]o rise above the (Oct. 25,1993). *15 boots, top grip don a wearer must urges that Finally, majority upper two hands of the woven textile to the definition of up while should defer pull forcefully the boot
1375 government’s in found collection of use laces buckles other fasteners” According “Footwear Definitions.” to this excludes boots that rise above the ankle document, ‘slip-on’ “[a] [a] and that are not easy slip on, such as must on.” id. at pulled boot which be See appeal. boots at issue in this I re- Presumably, in *24. this definition would spectfully dissent. cowboy boots, excep
clude can which difficult
tionally place foot. As concedes, however, majority the defini
tions included this document are not rulings.”
formal “Customs See id. at *1. such, only
As these are entitled definitions deference, notwithstanding
to Skidmore length agency of time to has which
adhered to them.
Kasten
See
v. Saint-
GENERAL DYNAMICS
Corp.,
Gobain
Plastics
563
Performance
CORPORATION,
-, -,
1325, 1335-36,
U.S.
131 S.Ct.
Appellant,
(2011) (citing
upon thoroughness evident [the
agency’s] consideration, validity of its
reasoning, consistency its with earlier and pronouncements,
later and all those factors give power persuade, lacking if control.”).
power to The document does provide any reasoning for defini-
tions, simply asserts fiat which must
“boot[s] on” are
“slip-on[s].” Definitions, See Footwear 93-88, &
T.D. Cust. B. Dec. No. above,
*24. For the reasons discussed
government’s interpretation of subheading unpersuasive.
6404.19.35is sum, the common and commercial
meaning of the term slip- “footwear of the type, held to the foot without the