dissenting.
The issue is whether the imported shoes are, for tariff purposes, more than 50% by weight “rubber.” The answer turns on whether the mid-sole, composed of approximately 10 % cross-linked elastomer and 90% *28iron powder and constituting more than 50% of the weight of the shoe, must be considered to be “rubber” for tariff purposes.
Headnote 2 is our only guide in determining whether the midsole is “rubber” for tariff purposes. Though I find no comfort in Headnote 1,1 agree with Judge Bich that the language of the Headnote 2 is subject to conflicting interpretations. I opt for what I consider its strict construction.
Paraphrased and stripped of redundant and inapplicable wording, the headnote is being read by the maj ority as:
For tariff purposes, tlie term “rubber” means a substance, whether or not containing fillers, which can be cross-linked and thereafter stretches and returns within certain criteria.
So read, the headnote would require that the midsole itself pass the specified tests. Admittedly, it cannot. Thus the midsole could not be termed “rubber” and the imported shoes could not be classified as composed of more than 50'% by weight of rubber. The majority so holds.
Again paraphrasing and stripping the headnote of redundant and inapplicable wording, I would read it as:
For tariff purposes, the term “rubber” means a substance, in crude form, which can be cross-linked and thereafter stretches and returns within certain criteria and the term “rubber” means that substance whether or not it contains fillers.
So read, the headnote would limit the testing to the substance without fillers. Admittedly that substance here would pass the specified tests and the term “rubber” clearly applies to the substance without fillers. I interpret the provision regarding fillers, etc. as being an add-on or afterthought which says in effect, “if the substance is rubber, it remains rubber, for tariff purposes, even though it contains fillers, etc.”
I am aware, of course, of the seemingly incongruous result. A midsole, 90% of which is iron powder, is “rubber.” The incongruity argument is not persuasive, however, when the phrase “for tariff purposes” is given its full due. The majority interpretation would, for example,’ deny the title of “rubber” to an article composed of the elastomer and just enough fillers to cause the article to fail one of the tests by the barest margin. It would be just as incongruous not to call such an article “rubber” in an objective sense.
Because the elastomer portion of the midsole was stipulated to be a substance which “can be” cross-linked and therefore would pass the specified tests and, as I believe, the presence or absence of fillers is irrelevant for tariff purposes, the burden of proof as to other methods of cross-linking is of no moment. If it were, I would fully *29concur with the majority that the burden should be upon the-government.
Similarly, I fully concur with the majority in disregarding the-government’s arguments regarding “plastics” for the reasons set forth in the majority opinion.
The limited legislative history of Headnote 2, and of neighboring-portions of the statute, provides no unerring guide to our decision here. The portion of Headnote 2 relating to “fillers” was removed,, without comment, from its position ahead of the portion relating to. cross-linking and tests (in an earlier draft) and inserted in its present position at the end of the headnote as passed. Without more, an intent of the Congress should not be found on that fact alone. I am content; to take the headnote as it exists and believe it should be read as set forth herein.
In so reading the headnote, I impute no inconsistency to the Congress. Headnote 2 is applicable to all appropriate items of the TSUS,. of which item 700.60 is but one. The weight determination under that item and the determination of what is “rubber” are, in my view, entirely separate considerations.
Accordingly, I would affirm the decision of the Customs Court, but for the reasons set forth herein.