concurring.
I fully agree with Judge Lane’s opinion but wish to add the following considerations.
The importation consists of footwear and the issue is whether it is to be classified in TSUS 700.60 or TSUS 700.70. This, in turn, depends on whether plaintiff has sustained its burden of proving that the footwear is not “over 50 percent of rubber.” In determining this seemingly simple fact question, the court below, both parties, and amicus are in agreement that the definition of “rubber” in Schedule 4, Part 4, Subpart B, Headnote 2, is controlling as to the meaning of “rubber.” Indeed, the headnote itself states that “For the purposes of the tariff schedules, the term ‘rubber’ means a substance” meeting certain stated requirements. (My emphasis.) That definition of “rubber” has produced chaos.
Since the Tariff Schedules have provided in Headnote 2 a statutory definition of “rubber” which is not only controlling here but obviously intended to apply to every item in the TSUS referring to “rubber,” that definition is potentially of vast importance to future tariff questions.
There has been an unusual amount of judicial confusion in this case over the interpretation of Headnote 2. I think this stems from its unfortunate grammatical construction, which appears to have led the lower court into results we have found to be incongruous.
Headnote 2 is one of the two headnotes to “Subpart B. — Rubber.” Headnote 1 provides that “This subpart covers all rubber * * That being so, Headnote 2 cannot, as a matter of common sense, be limited to “crude” rubber as the Customs Court appears to have thought. Yet the literal reading of Headnote 2 makes it appear to apply only to crude rubber. If rubber is being defined for the pur*26poses of all the tariff schedules, many of which cover products made of or containing rubber in which the rubber is, of necessity, not crude but in its finished state — vulcanized, cross-linked or whatever else it may be called — then it must have been the intent of Congress to write a definition that applies to both crude and vulcanized rubber.
The transition point, so to speak, between crude and vulcanized rubber is the point where cross-linking occurs. It is to be noted that Headnote 2 itself deals with substances on both sides of this transition point. It first speaks of a substance in “crude form” which can be vulcanized or otherwise cross linked; it next speaks of a substance which, after cross linking, is capable of meeting specified stretch and stretch-and-return tests. Beading Headnotes 1 and 2 m fan materia, one must read Headnote 2 defining “rubber” both before it is cross linked and after it is cross linked — i.e., “all rubber,” as Headnote 1 commands.
The unfortunate grammatical construction, to which I have referred and which I think we should ignore in order to carry out the obvious intent of Congress, is, first of all, the placement of the word “which,” first occurrence. If it be advanced from its position just before the .words “can be vulcanized” to precede the enumeration of various crude forms of rubber, the beginning of the headnote would then read:
For the purposes of the tariff schedules, the term “rubber” means a substance, whether natural or synthetic, which, in bale, crumb, powder, latex, or other crude form, can be vulcanized or otherwise cross linked * * *.
The only form of rubber which can be “vulcanized or otherwise cross linked” is a substance in a crude form because after cross-linking it is no longer “crude.” Cross-linked rubber cannot be cross linked. That, ■however, is only the first part of the test a “substance” in crude form must meet to qualify as crude “rubber.” The cross-linked material must then meet the stretch tests too, else the crude substance is not crude “rubber.”
If, however, we are dealing with an importation involving a cross-linked substance, as distinguished from a crude substance, as we are in the present case, then, I think, the language of the headnote must be applied thus (emphasis mine) :
* * * the term “rubber” means a substance * * * which after cross linking can be stretched at 68° F. to at least three times its original length and which, after having been stretched to twice its original length and the stress removed, returns within 5 minutes to less than 150 percent of its original length, and, includes such siobstance whether or not containing fillers, extenders, pigments, or rubber-processing chemicals.
I read the final clause “and includes * * * chemicals” to mean the same thing whether positioned as it is or whether it be construed as though the word “substance” in the first line above were followed *27directly by the clause, “whether or not containing fillers, extenders, pigments, or rubber-processing chemicals.” But not all of my colleagues so read it. This is a second unfortunate construction. ■
A stipulated fact in this case is that the midsoles have been vulcanized or otherwise cross linked. It is also stipulated that both parties will be bound by the finding of the Customs Laboratory as to whether this “so-called iron powder midsole material can be stretched to three times its original length.” The laboratory finding was that it cannot be so stretched.
I agree with the Customs Court that whether the midsole material is or is not “rubber” for purposes of the tariff schedules depends upon whether it meets the standards of Headnote 2. My point of disagreement with the lower court is in its apparent belief that those standards apply only to material in crude form. I also have to disagree that there “is not a scintilla of evidence” that the midsole mixture (elastomer plus iron powder), in crude form or otherwise, was, after cross linking, incapable of meeting the stretch tests of Headnote 2. The stipulated fact is that it was vulcanized or otherwise cross linked when imported and the Customs Laboratory found that it was incapable of meeting the stretch tests of Headnote 2.
As I read Headnote 2,1 have to reject the argument that in testing the midsole material for compliance therewith one should ignore the principal component of that material — the iron powder, which is a “filler.” Under the headnote the term “rubber” includes a cross-linked material (10%) and filler of iron powder (90%). It is not technically possible, I believe, to add “filler” to a cross-linked or vulcanized elas-tomer ; the filler has to be compounded with the crude substance, after which they are vulcanized together. I do not see how the Customs Court can object to the fact that the laboratory stretch tests were performed on the llfinished midsolesP If one wishes to know whether they are made of “rubber,” they cannot be performed in any other way. The stretch tests, as specified in Headnote 2, apply only to cross-linked material — -and “whether or not containing fillers.”
I have been motivated to state the foregoing because my experience in this case has persuaded me to three things: (1) Headnote 2, which is controlling, is of great importance; (2) Headnote 2 is very confusing; (3) the legislature should clarify Headnote 2.1 hope that the judicial disagreement in this case will persuade it to do so before too many more disputes are generated by the headnote.